IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

LARRY JAMES FOURNIER,

Appellant.

No. 2 CA-CR 2022-0108

Filed July 24, 2023

Appeal from the Superior Court in Pima County

No. CR20190309001

The Honorable Michael J. Butler, Judge

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General

Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals

By Jacob R. Lines, Assistant Attorney General, Tucson

Counsel for Appellee

James Fullin, Pima County Legal Defender

By Robb P. Holmes, Assistant Legal Defender, Tucson

Counsel for Appellant
STATE v. FOURNIER

Opinion of the Court

2

OPINION

Judge O’Neil authored the opinion of the Court, in which Vice Chief

Judge Staring and Judge Sklar concurred.

O’ N E I L, Judge:

¶1 Larry Fournier appeals from his convictions and sentences for 

second-degree murder, theft, and theft of means of transportation. He 

contends the trial court improperly denied his motion to strike a 

prospective juror, erred in certain evidentiary rulings, and incorrectly 

instructed the jury. We affirm.

BACKGROUND

¶2 In October 2018, Fournier was living with a roommate, J.H., 

in Tucson. At some point late that month, J.H. confronted Fournier about a 

$2,500 check that Fournier had apparently written to himself out of J.H.’s 

account. The two men argued, and J.H. picked up his phone to call the 

police. Believing he might be arrested, Fournier took the phone and 

punched J.H. in the head repeatedly until he “slumped” in the area of a 

desk. He then took J.H. by the shirt and threw him to the floor. Fournier 

saw J.H.’s motionless body and blood pooling on the floor, and he knew 

J.H. was dead. He took J.H.’s car and left. 

¶3 On October 28, Fournier began depositing checks from J.H.

with signatures that did not match J.H.’s handwriting. He deposited 

similar checks in Tucson on October 28 and 29, and in Albuquerque on 

November 1. On October 30, he purchased a new set of tires in Phoenix, 

shut down his existing telephone number, and set up a new prepaid 

telephone line under a different number from the same cellular service 

provider. 

¶4 J.H.’s brother called the police on November 2 because he was 

concerned for J.H.’s wellbeing and noticed suspicious withdrawals from his 

bank account. When an officer visited J.H.’s residence that same day, he

found J.H.’s vehicle gone but saw nothing else that seemed suspicious. 

Officers returned to the residence on November 6 and immediately 

recognized the odor of a decomposing body. The doors were locked, and 

there was no sign of forced entry. After prying open the door to enter the 
STATE v. FOURNIER

Opinion of the Court

3

residence, officers found J.H.’s decomposed body with blood pooled 

around the head.

¶5 Officers arrested Fournier at a motel in Michigan on 

November 14. J.H.’s car was found backed into a parking space in front of 

the motel, bearing a license plate belonging to a different vehicle. A 

computer tower, its data wiped clean, was found in the car after officers 

noted the absence of any computer tower connected to a computer monitor 

located in J.H.’s home. 

¶6 Fournier was tried on charges of first-degree murder, theft, 

and theft of means of transportation. A jury found Fournier not guilty of 

first-degree murder but guilty of second-degree murder as a lesserincluded offense. The jury also found him guilty of theft and theft of means 

of transportation. The trial court sentenced Fournier to concurrent terms of

imprisonment, the longest being twenty years. Fournier appealed. We 

have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

DISCUSSION

¶7 Fournier asserts the trial court abused its discretion by 

rehabilitating a prospective juror and denying a motion to strike that juror 

for cause. He further asserts the court erred by admitting into evidence a 

handwritten confession that Fournier had given to a fellow jail inmate and 

by failing to sua sponte instruct the jury regarding the voluntariness of that 

confession. He also challenges the court’s instruction on manslaughter as a 

lesser-included offense and its decision to instruct the jury on flight or 

concealment. Finally, Fournier argues the court erred by precluding him 

from presenting evidence of a prior legitimate check that J.H. had made out

to him months earlier. 

I. Rehabilitation of Juror and Denial of Motion to Strike for Cause

¶8 We first address Fournier’s arguments related to jury 

selection, which are informed by a recent amendment to the Arizona Rules 

of Criminal Procedure that eliminated peremptory strikes in criminal trials. 

See Ariz. Sup. Ct. Order R-21-0020 (Aug. 30, 2021). As we recently discussed 

in State v. Jimenez, No. 2 CA-CR 2022-0062, ¶¶ 6-8, 2023 WL 4529422 (Ariz. 

App. July 13, 2023), this amendment entrusts our trial courts with the 

responsibility to determine the final composition of juries. See, e.g., State v. 

Hickman, 205 Ariz. 192, ¶ 31 (2003). The amendment did not, however,
STATE v. FOURNIER

Opinion of the Court

4

change either our standard of review or the standard a court must apply to 

strike a juror for cause. 

¶9 A party challenging a juror for cause must show “that the 

juror cannot render a fair and impartial verdict” by a preponderance of the 

evidence. Ariz. R. Crim. P. 18.5(h); see also State v. Comer, 165 Ariz. 413, 426 

(1990). “Because a trial judge has the best opportunity to assess whether a 

juror can be fair and impartial, appellate courts review such decisions only 

for abuse of discretion.” Hickman, 205 Ariz. 192, ¶ 39. The court did not 

abuse its discretion by concluding that Fournier failed to meet his burden 

here. 

¶10 During jury selection, Fournier’s attorney asked the panel 

several questions connected to the presumption of innocence and the 

burden of proof. He began by asking whether any of the prospective jurors 

would vote to convict Fournier if deliberations began immediately, without 

any evidence having been presented. No juror raised a hand. When he 

later asked whether any juror would “need more information before 

[making] a decision,” several jurors raised their hands. Fournier’s attorney 

responded by telling the panel “that’s the incorrect answer,” explaining 

“that unless he’s proven guilty beyond a reasonable doubt, anything short 

of that standard requires a not guilty verdict.” He asked the same question 

again, and no juror raised a hand. He asked whether any prospective juror 

would vote guilty, and no juror raised a hand. Finally, he asked whether 

any prospective juror would vote not guilty, and every juror but one raised 

a hand. When Fournier’s attorney asked that juror why he did not raise his 

hand, the juror explained that he was trying to ensure that “when [he] 

raise[d his] hand that [he felt] solid behind that answer.” He said he 

“wouldn’t be able to find him guilty or not guilty without getting more 

information.” 

¶11 Fournier’s attorney did not ask further questions of the juror, 

but the trial court did. The court asked, “[I]f there are no facts that are 

presented to you and the law says you have to have facts presented to you, 

you would understand what the result would be, right?” The juror 

answered, “Yes, yes.” The court acknowledged that it would “become 

clear. . . that there’s evidence,” and the question had been “kind of a trick 

question.” The juror explained that he “wouldn’t be able to say right now 

not guilty, because [he didn’t] have any information in front of [him],” and 

he indicated that “in order to find someone not guilty, [he] would have to 

look over the facts.” The court further clarified the question and asked, “[I]f 

no facts were presented, what other verdict could you have?” The juror 
STATE v. FOURNIER

Opinion of the Court

5

answered, “Certainly. I understand that.” This juror, like the rest, had 

previously affirmed that he would have no difficulty holding the state to its 

burden to prove the defendant guilty beyond a reasonable doubt. He had 

acknowledged that he would have no reservation finding the defendant not 

guilty if the state failed to meet that burden. He had agreed that he would 

have no problem finding the defendant not guilty even if the defendant 

chose not to present any evidence, testify, or appear at trial. And he had

indicated that he did not have “a hard time” with the notion that the 

defendant “is innocent” before the presentation of evidence.

¶12 Preliminarily, the trial court did not err by asking questions 

to rehabilitate the juror. In support of his argument, Fournier cites the 

comment to Rule 18.5(f), Ariz. R. Crim. P., added in connection with the 

elimination of peremptory strikes. The comment states:

When feasible, the court should permit liberal 

and comprehensive examination by the parties, 

refrain from imposing inflexible time limits, and 

use open-ended questions that elicit prospective 

jurors’ views narratively. The court should 

refrain from attempting to rehabilitate 

prospective jurors by asking leading, 

conclusory questions that encourage 

prospective jurors to affirm that they can set 

aside their opinions and neutrally apply the 

law. 

This comment, however, does not alter the rule. See State v. Aguilar, 209 

Ariz. 40, ¶ 26 (2004) (“Although a comment may clarify a rule’s ambiguous 

language, a comment cannot otherwise alter the clear text of a rule.”). 

Fournier was required to show that the prospective juror was “incapable of 

rendering a fair and impartial verdict.” State v. Acuna Valenzuela, 245 Ariz. 

197, ¶ 21 (2018) (quoting State v. Lavers, 168 Ariz. 376, 390 (1991)); Ariz. R. 

Crim. P. 18.5(h).

¶13 Trial courts retain broad discretion to either excuse or retain 

prospective jurors. Jimenez, 2023 WL 4529422, ¶ 8. The comment to Rule 

18.5(f) does not limit or change its requirement that courts “conduct a 

thorough oral examination of the prospective jurors and control the voir 

dire examination.” Ariz. R. Crim. P. 18.5(f); see Aguilar, 209 Ariz. 40, ¶ 26.

Similarly, the comment does not strip away what the rule expressly 

provides by giving courts “the discretion to manage voir dire.” Ariz. R.
STATE v. FOURNIER

Opinion of the Court

6

Crim. P. 18.5(f); see Aguilar, 209 Ariz. 40, ¶ 26. The comment does not negate 

prior case law requiring courts to provide parties an opportunity for 

rehabilitation before striking a juror for cause. See, e.g., State v. Payne, 233 

Ariz. 484, ¶ 16 (2013) (court erred by failing to afford an opportunity to 

rehabilitate a prospective juror); Ariz. R. Crim. P. 18.5(f) (“the court must 

allow the parties sufficient time . . . to conduct a further oral examination of 

the prospective jurors”). 

¶14 The rule does not forbid leading questions, by parties or the 

court, including those addressing rehabilitation. See Ariz. R. Crim. P. 

18.5(f). A trial court thus does not err merely by asking a leading question 

during voir dire, even when the question touches on a juror’s fairness and 

impartiality. See Aguilar, 209 Ariz. 40, ¶ 26. The comment appropriately 

encourages courts to use open-ended questions that elicit narrative answers

when feasible. Ariz. R. Crim. P. 18.5(f) cmt. It also correctly cautions courts 

against relying on affirmative answers to leading, conclusory questions to 

rehabilitate a juror who appears biased, prejudiced, or otherwise unwilling 

or unable to render a fair and impartial verdict. Id.; see Ariz. R. Crim. P. 

18.4(b); A.R.S. § 21-211(4). But the court here did not ask the juror to affirm 

his fairness and impartiality. It did not engage in the type of questioning 

the comment to Rule 18.5(f) cautions against.

¶15 The juror’s answers suggested possible confusion, concerning 

either his duty or the attorney’s question, that did not demonstrate an 

inability to be fair and impartial. See State v. Goodyear, 98 Ariz. 304, 324-25

(1965) (when asked whether she would apply the presumption of innocence 

by voting for acquittal if the case was submitted without evidence, a juror’s 

answer that she “d[id]n’t think [she] could make up [her] mind” because 

she “d[id]n’t know enough” suggested she was “willing to listen to the 

evidence before making up her mind” and did “not show that she was not 

fair and impartial”). The juror had not yet been fully instructed on the law. 

See id. at 325. The court’s voir dire was directed to ensure the juror 

understood his duties and was willing and able to perform them. And 

while some of the court’s questions were not open-ended, the juror 

answered narratively, which further demonstrated that there was no

pressure to affirm neutrality. The purpose of voir dire is to elicit 

information relevant to a prospective juror’s ability to render a fair and 

impartial verdict, not to confuse or catch one in some prior misconception 

or misunderstanding about the law without the benefit of proper and 

complete jury instructions. Ariz. R. Crim. P. 18.5(g), (h).
STATE v. FOURNIER

Opinion of the Court

7

¶16 Having properly managed voir dire by confirming the juror’s 

understanding, the trial court did not abuse its discretion by denying the 

motion to strike for cause. See Comer, 165 Ariz. at 423-26 (finding no error 

in refusing to strike two jurors who said defendant was probably guilty, but 

later stated they could try to form a final opinion based on the evidence); 

State v. Tison, 129 Ariz. 526, 533 (1981) (upholding decision not to excuse 

juror who expressed opinion that defendant was likely guilty, but said she 

could judge case on evidence presented). At most, the juror’s answers 

displayed confusion about how the presumption of innocence and the 

burden of proof would apply in a hypothetical case in which, unlike this 

one, no evidence was presented. When the court explained the juror’s duty 

in more detail, he acknowledged his understanding to the court’s 

satisfaction. Nothing in the juror’s answers suggested unwillingness or 

inability to render a fair and impartial verdict, to render a decision based 

solely upon the evidence, or to follow the court’s instructions when given.

¶17 “Even a juror with preconceived notions about the 

defendant’s guilt need not be excused if he or she agrees to decide the case 

based only on the evidence.” State v. Anderson, 210 Ariz. 327, ¶ 28 (2005). 

The juror here expressed no such preconception. He simply indicated that 

he would “look over the facts” before rendering a verdict. This answer 

suggested the juror’s willingness to hear the evidence before making up his 

mind and did not show that he was incapable of rendering a fair and 

impartial verdict. See id.; Acuna Valenzuela, 245 Ariz. 197, ¶ 21.

II. Voluntariness of Written Admission

¶18 At trial, the state introduced evidence of a handwritten letter 

that Fournier had passed to an inmate housed in a nearby cell in the

Michigan jail where he awaited extradition to Arizona. The letter described

the murder in detail, including circumstances that were otherwise known 

only to investigators. In a motion and at a pretrial hearing, Fournier 

challenged the letter’s admission on the grounds that the state could not lay 

foundation for the letter and could not establish that it was written 

voluntarily. The trial court found the letter voluntary by a preponderance 

of the evidence, a finding Fournier now challenges on appeal.1 Fournier 

1Fournier also alludes to a “foundational argument” on appeal, but 

does not develop it, noting only that “the foundational argument was based 

on the failure to prove that the admission was voluntary.” At trial, the state 
STATE v. FOURNIER

Opinion of the Court

8

also argues, for the first time on appeal, that a transcribed third-party 

interview admitted at the voluntariness hearing was heresy and its 

admission violated the confrontation clause. Finally, Fournier asserts the 

court fundamentally erred by failing to instruct the jury on the 

voluntariness of his confession. 

A. Voluntariness finding

¶19 A confession is admissible if voluntarily given. A.R.S. 

§ 13- 3988(A). The state bears the burden of proving that a confession is 

voluntary by a preponderance of the evidence. State v. Trostle, 191 Ariz. 4, 

14 (1997). We review a trial court’s ruling on the voluntariness of a 

confession for abuse of discretion. State v. Newell, 212 Ariz. 389, ¶ 22 & n.6

(2006). Coercive police activity is a necessary predicate to an involuntary 

confession. Colorado v. Connelly, 479 U.S. 157, 165-67 (1986); State v. Huerstel,

206 Ariz. 93, ¶ 73 (2003) (“[A] confession is involuntary only if it results 

from coercive activity by the state.”); State v. Amaya-Ruiz, 166 Ariz. 152, 166 

(1990) (defendant must show “coercive police conduct, rather than internal 

compulsion, induced his confession”). Our review of a motion to suppress 

is limited to consideration of the facts the trial court heard at the 

suppression hearing, State v. Blackmore, 186 Ariz. 630, 631 (1996), viewed in 

the light most favorable to sustaining its ruling, State v. Hyde, 186 Ariz. 252, 

265 (1996).

¶20 The trial court did not abuse its discretion. At the suppression 

hearing, Fournier agreed to submit the voluntariness question to the court 

based on a transcribed interview of the inmate who received the letter. 

According to that transcript, Fournier wrote and delivered the letter to the 

other inmate without either involvement or knowledge of any state actor. 

Fournier agreed that police were not involved in eliciting the confession. 

¶21 Any threats by a private person to coerce Fournier into 

confessing were irrelevant to the voluntariness of his confession unless 

police knew of those threats and exploited them. See Huerstel, 206 Ariz. 93, 

¶ 73. The absence of police coercion alone adequately supports the trial 

court’s finding that the confession was voluntary. See also State v. Tucker, 

157 Ariz. 433, 445-46 (1988) (a confession was “voluntary” in the absence of 

“coercive police tactics,” although other circumstances “may render his 

laid foundation for admission of the letter through expert testimony that

matched the letter to Fournier’s handwriting. 
STATE v. FOURNIER

Opinion of the Court

9

statements so unreliable that they must be excluded under the evidentiary 

laws of the forum”). Nor was there evidence of threats or coercive 

pressures from any other source. Evidence at the hearing showed that 

Fournier gave his confession to the other inmate “freely” in a series of 

written notes to prevent others from overhearing. Fournier presented no 

contrary evidence. 

B. Hearsay and confrontation clause

¶22 At the suppression hearing, Fournier did not object to the trial 

court’s consideration of the transcribed interview on hearsay and 

confrontation clause grounds. We therefore review only for fundamental, 

prejudicial error. See State v. Escalante, 245 Ariz. 135, ¶ 12 (2018). As noted, 

Fournier stipulated to submit the voluntariness issue to the court based on 

the transcript. Thus, even if the transcript’s admission was error, Fournier 

invited it. See State v. Parker, 231 Ariz. 391, ¶ 61 (2013) (finding a party 

precluded from challenging admissibility of evidence on appeal after 

stipulating to its admission).

¶23 But the trial court did not err, fundamentally or otherwise, by 

receiving the transcript into evidence. Hearsay is generally admissible in a 

suppression hearing. See State v. Keener, 110 Ariz. 462, 465 (1974); see also 

State v. Riley, 196 Ariz. 40, ¶¶ 6-7 (App. 1999) (holding that confrontation 

rights do not apply to the same extent at a pretrial suppression hearing as 

they do at trial); Ariz. R. Evid. 104(a) (stating a court is not bound by rules 

of evidence in preliminarily determining the admissibility of evidence).

Fournier cites no authority to suggest a trial court has a duty to sua sponte 

bar the admission of any alleged heresy absent an objection. See Ariz. R.

Crim. P. 31.10(a)(7)(A). 

C. Voluntariness instruction

¶24 Section 13-3988(A) sets conditions on the use of confessions as 

evidence in criminal trials. It provides as follows:

In any criminal prosecution brought by the 

state, a confession shall be admissible in 

evidence if it is voluntarily given. Before such 

confession is received in evidence, the trial 

judge shall, out of the presence of the jury, 

determine any issue as to voluntariness. If the 

trial judge determines that the confession was 
STATE v. FOURNIER

Opinion of the Court

10

voluntarily made it shall be admitted in 

evidence and the trial judge shall permit the 

jury to hear relevant evidence on the issue of 

voluntariness and shall instruct the jury to give 

such weight to the confession as the jury feels it 

deserves under all the circumstances.

Although this requires a court to instruct the jury appropriately when 

voluntariness is genuinely at issue, the “court may refuse [a] request for a 

voluntariness instruction if the evidence has not raised a question of 

whether his statements were voluntary.” State v. Stone, 122 Ariz. 304, 311 

(App. 1979); see State v. Williams, 120 Ariz. 600, 601-02 (1978) (affirming a 

trial court’s refusal to instruct on voluntariness even though the defendant 

moved to suppress a confession and requested a voluntariness instruction, 

because the defendant “failed to present any evidence from which the jury 

could conclude that his statements were involuntary”).

¶25 A defendant is entitled to a jury instruction if it is reasonably 

supported by the evidence. State v. Bolton, 182 Ariz. 290, 309 (1995). A mere 

inference is insufficient to support an instruction “because speculation 

cannot substitute for evidence.” State v. Vassell, 238 Ariz. 281, ¶ 9 (App. 

2015). Fournier did not request a voluntariness instruction at trial, so we 

review only for fundamental, prejudicial error. Escalante, 245 Ariz. 135, 

¶ 12. We conclude the court did not fundamentally err by failing to sua 

sponte instruct the jury on the voluntariness of Fournier’s confession.

¶26 As we have noted, it is undisputed that the confession was 

not the product of any state action. The trial court nonetheless permitted

Fournier to present evidence concerning voluntariness, including by 

exploring whether Fournier was coerced by the jail inmate who received 

his written confession. But the record is devoid of any evidence of threats 

or other coercive activity, and Fournier was not in the same room as the 

other inmate at the time he delivered the letter through an opening in his 

cell door. Fournier cites evidence that written confessions like his are 

unusual, that inmates sometimes seek confessions from other inmates to 

help their own cases, and that his fellow inmate was muscular and “very 

stacked.” Fournier’s arguments are speculative and do not support a 

finding that the inmate or anyone else actually coerced Fournier into 

confessing.
STATE v. FOURNIER

Opinion of the Court

11

III. Other Jury Instructions

¶27 Fournier raises two additional challenges to the jury 

instructions. For the first time on appeal, Fournier asserts the trial court

improperly instructed the jury regarding manslaughter as a lesser-included 

offense of murder. He also asserts the court erred by instructing the jury 

on flight or concealment. A party is entitled to any instruction reasonably 

supported by the evidence. Bolton, 182 Ariz. at 309. 

A. Lesser-included instruction for provocation manslaughter

¶28 The trial court instructed the jury on manslaughter as a 

lesser- included offense of murder as provided in State v. LeBlanc, 186 Ariz. 

437, 438 (1996), directing the jury that it may consider the lesser offense if it

either “find[s] the defendant not guilty” or “cannot agree on whether to 

find the defendant guilty or not guilty” of the greater offenses. The court’s 

manslaughter instruction included theories of “reckless manslaughter” 

under A.R.S. § 13-1103(A)(1) and “provocation manslaughter” under 

§ 13- 1103(A)(2). 

¶29 Fournier does not dispute that the trial court properly 

instructed the jury as to reckless manslaughter, but he asserts the 

instruction was deficient as to provocation manslaughter. Because Fournier 

did not object to the court’s instruction at trial, we review only for 

fundamental error. See Escalante, 245 Ariz. 135, ¶ 12. Fournier bears the 

burden to prove the error was not only fundamental but prejudicial, such 

“that without the error, a reasonable jury could have plausibly and 

intelligently returned a different verdict.” State v. Fierro, 254 Ariz. 35, ¶ 21

(2022) (quoting Escalante, 245 Ariz. 135, ¶ 31).

¶30 In State v. Lua, 237 Ariz. 301, ¶ 19 (2015), our supreme court 

held that the lesser-included instruction provided in LeBlanc does not apply 

to provocation manslaughter. As defined in § 13-1103(A)(2), provocation 

manslaughter means “[c]omitting second degree murder . . . on a sudden 

quarrel or heat of passion resulting from adequate provocation by the 

victim.” Because provocation manslaughter requires proof of an additional 

circumstance, it is not a lesser-included offense of second-degree murder. 

Lua, 237 Ariz. 301, ¶¶ 18-19. The lesser-included instruction under LeBlanc

invites the jury to consider the lesser offense if it finds the defendant not 

guilty or cannot agree, but the proper instruction for provocation

manslaughter requires the jury to consider whether the additional 

circumstance set forth in § 13-1103(A)(2) has been proven if it “find[s] the 
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Opinion of the Court

12

elements of second-degree murder proven beyond a reasonable doubt.”

Lua, 237 Ariz. 301, ¶ 20 (quoting Rev. Ariz. Jury Instr. (RAJI) Stand. Crim.

11.04 (3d ed. 2011)). The trial court’s instruction omitted that critical 

distinction. 

¶31 Notwithstanding the faulty instruction, Fournier has not 

proven prejudice. The evidence did not support a theory of provocation 

manslaughter, and he did not argue it. “Given the defendant’s heavy 

burden to prove prejudice, it ‘is the rare case in which an improper 

instruction will justify reversal of a criminal conviction when no objection 

has been made in the trial court.’” Fierro, 254 Ariz. 35, ¶ 24 (quoting State 

v. Zaragoza, 135 Ariz. 63, 66 (1983)). A faulty instruction on a theory

unsupported by the evidence and unrelated to the defense at trial is not 

prejudicial because it could not have led a reasonable jury to reach a 

different verdict. See id. ¶ 25 (holding the defense “was unaffected by [a] 

faulty instruction” because “[t]he evidence did not show, and [the defense] 

did not argue,” a theory relevant to the faulty instruction).

¶32 An instruction for provocation manslaughter is appropriate 

in a second-degree murder prosecution “when there is evidence that the 

homicide was committed upon a sudden quarrel or heat of passion 

resulting from adequate provocation by the victim.” Lua, 237 Ariz. 301, 

¶ 20. Thus, the trial court was required to provide a provocation instruction 

only if that instruction was reasonably supported by the evidence. See State 

v. LaGrand, 152 Ariz. 483, 487 (1987) (“A party is entitled to an instruction 

on any theory reasonably supported by evidence.”). “Adequate 

provocation” is defined by A.R.S. § 13-1101(4) as “conduct or circumstances 

sufficient to deprive a reasonable person of self-control.”

¶33 Here, the sole evidence of provocation was Fournier’s written 

statement that during their argument over the $2,500 check, J.H. “grabbed 

his phone and said he was calling the bank and police.” No matter how 

heated the argument, “[w]ords alone are not adequate provocation to 

justify reducing an intentional killing to manslaughter.” State v. Dunbar, 

249 Ariz. 37, ¶ 32 (App. 2020) (quoting State v. Vickers, 159 Ariz. 532, 542 

(1989)). Neither J.H.’s saying he would call the police nor his grabbing his

phone constituted “conduct or circumstances sufficient to deprive a

reasonable person of self-control.” § 13-1101(4).

¶34 Fournier did not argue a theory of provocation manslaughter 

at trial. His sole defense was that he did not kill J.H. Even if Fournier had 

argued a theory of provocation manslaughter, the evidence would not have 
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Opinion of the Court

13

supported it. Fournier’s defense was therefore unaffected by the faulty

instruction, and he has not demonstrated prejudice. See Fierro, 254 Ariz. 35, 

¶ 25.

B. Flight instruction

¶35 Over Fournier’s objection, the trial court instructed the jury 

that in determining guilt, it “may consider any evidence of the defendant’s 

running away, hiding, or concealing evidence.” A court may give a flight 

or concealment instruction if there is evidence of flight after a crime from 

which the jury can infer a defendant’s consciousness of guilt. State v. Solis,

236 Ariz. 285, ¶ 7 (App. 2014). We review a court’s jury instructions for 

abuse of discretion, viewing the evidence in the light most favorable to the 

proponent of the instruction. See State v. King, 225 Ariz. 87, ¶ 13 (2010). 

¶36 The trial court did not abuse its discretion here. The record 

includes evidence that Fournier shut off his existing phone number and 

replaced it with a new prepaid line, left the city and then the state in J.H.’s 

car days after his death, replaced the tires and license plate, and backed into 

a parking spot at a Michigan motel in a manner that made it more difficult 

to see the false license plate. This evidence of Fournier’s flight from 

Arizona, including several measures that might have made his location 

more difficult to track, was sufficient for the jury to reasonably infer 

consciousness of guilt.

IV. Exclusion of Past Check

¶37 Finally, Fournier asserts the trial court abused its discretion 

by precluding him under Rule 403, Ariz. R. Evid., from presenting evidence 

of a legitimate check that J.H. had written to Fournier in June, several 

months before the October homicide. Fournier argued at trial that the older 

check was relevant because the failure of police to conduct a handwriting 

analysis on the checks went to the completeness of the investigation. The 

court precluded the check on the basis that it was too remote in time and 

there had been no allegation of any fraud in June, such that the June check

was not relevant to the quality of an investigation concerning checks 

written in October. 

¶38 The trial court is in the best position to balance the probative 

value of evidence against dangers such as unfair prejudice, confusion, 

wasting time, or presenting cumulative evidence. State v. Togar, 248 Ariz. 

567, ¶ 23 (App. 2020); see Ariz. R. Evid. 403. “We review a trial court’s 
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Opinion of the Court

14

determination of relevance and admissibility of evidence for an abuse of 

discretion.” State v. Rose, 231 Ariz. 500, ¶ 59 (2013) (quoting State v. Hardy, 

230 Ariz. 281, ¶ 49 (2012)). The trial court did not abuse its discretion here.

¶39 As the trial court noted, the June check occurred months 

before the events at issue for trial, and Fournier conceded there had been 

no allegation of any fraudulent checks in that time period. Given the 

check’s remoteness in time from the relevant allegations, its connection to 

the completeness of the investigation was slim. See Brown v. U.S. Fid. & 

Guar. Co., 194 Ariz. 85, ¶ 25 (App. 1998) (“Otherwise relevant evidence may 

be excluded if it is too remote in time from the proposition being proved.”). 

Nor does Fournier adequately explain why the June check was relevant to 

his argument concerning the failure to conduct a handwriting analysis, an 

argument he made at trial independently of whether any of the checks were 

legitimate. In addition, other checks introduced at trial were legitimate and 

contained J.H.’s authentic signature. Fournier has not explained why these 

other checks were inadequate to his strategy at trial. The court had 

discretion to preclude the June check if its probative value was substantially 

outweighed by the dangers of wasting time or presenting cumulative 

evidence. See Ariz. R. Evid. 403.

DISPOSITION

¶40 We affirm Fournier’s convictions and sentences.