FILED BY CLERK

COURT OF APPEALS

DIVISION TWO

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

JESUS XAVIER ALMAGUER,

Appellant.

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2 CA-CR 2011-0249

DEPARTMENT B

O P I N I O N

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20083840

Honorable Jose H. Robles, Judge Pro Tempore

AFFIRMED

Thomas C. Horne, Arizona Attorney General

 By Joseph T. Maziarz and Kathryn A. Damstra

Lori J. Lefferts, Pima County Public Defender

 By Frank P. Leto

Tucson 

Attorneys for Appellee

Tucson

Attorneys for Appellant

E S P I N O S A, Judge.

¶1 Jesus Almaguer was charged with second-degree murder, and a jury 

convicted him of the lesser offense of manslaughter. The trial court found a prior 

MAY 31 2013
2

burglary conviction and sentenced Almaguer to an aggravated term of nineteen years’ 

imprisonment based on the use of a deadly weapon, harm to the victim’s family, and 

Almaguer’s fleeing the scene of the homicide. He appeals his conviction on the ground 

he was denied his constitutional right to a fair trial, specifically challenging various jury 

instructions, the court’s preclusion of certain testimony, and its denial of his motion for a 

mistrial based on a witness’s “outburst.” For the following reasons, we affirm.

Factual Background and Procedural History

¶2 We view the facts in the light most favorable to sustaining the verdict, 

resolving all reasonable inferences against the defendant. State v. Karr, 221 Ariz. 319, 

¶ 2, 212 P.3d 11, 12 (App. 2008). Around midnight one Friday in May 2008, Almaguer 

and his friend Albert Cota attended a party at a Tucson apartment shared by Jolene L.,

her former boyfriend Abram, and their children. When Almaguer and Cota arrived, 

Abram’s father Antonio, Sr. and brother Antonio, Jr. were drinking, smoking marijuana, 

and socializing with other guests.

¶3 Later in the evening, Antonio, Sr. and his sons were smoking on the 

balcony when Almaguer and Cota came out of the apartment and Cota urinated off the 

balcony. Abram verbally confronted Cota and cursed at him, and Almaguer said, “I 

wouldn’t let him be talking shit like that to me.” Abram swore at Almaguer, and 

Almaguer started walking toward him. Almaguer then punched Abram, and the two 

began to fight. Antonio, Sr. attempted to separate them, and Cota removed his shirt, 

preparing to join the fight. Antonio, Sr. told Almaguer to leave, and Almaguer reached 
3

for a handgun secured in his belt. Antonio, Sr. knocked him to the ground. As the two 

wrestled, Antonio, Jr. and Abram joined the fray, and Almaguer fired the gun once,

shooting Antonio, Jr.

1

 Almaguer stood up and pointed the gun at Antonio, Sr. and 

Abram, and Cota yelled, “[S]hoot him, shoot him,” and, “Did we get him? Did you get 

him? Shoot again.” They both fled to Almaguer’s vehicle. As they drove away, Cota

telephoned Jolene to say he was sorry and “it[ wa]s not supposed to happen that way.”

Antonio, Jr. died from his injury.

¶4 Police located and pursued a vehicle matching the description of the car

driven by Cota and Almaguer, but it evaded them. Cota was arrested the next day, and a 

warrant was issued for Almaguer, who eventually was extradited from Mexico in 

April 2010. He was tried, convicted, and sentenced as described above. We have 

jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and

13-4033(A).

Discussion

Jury Instructions

¶5 Almaguer asserts his constitutional right to a fair trial was violated when

the trial court failed to give certain requested jury instructions. See U.S. Const. amends. 

VI, XIV; Ariz. Const. art. II, § 4. He argues the court was required to instruct the jury 

 

1Although Almaguer claims the evidence only shows the gun “was fired,” we 

view the evidence in the light most favorable to sustaining the verdict, see Karr, 221 

Ariz. 319, ¶ 2, 212 P.3d at 12, and the jury readily could infer Almaguer fired his pistol 

after pulling it from his belt.
4

on the state’s burden to disprove his claim he had acted in self-defense as to the lesser

offenses of manslaughter and negligent homicide, and also erred by denying his request 

for instructions defining the terms “proximate cause” and “voluntary act.” “We review 

the trial court’s decision to give or refuse a jury instruction for an abuse of discretion.” 

State v. Hurley, 197 Ariz. 400, ¶ 9, 4 P.3d 455, 457 (App. 2000). Moreover, the court 

has an independent duty to instruct on the law when the matter is vital to a proper 

consideration of the evidence, even if the particular instruction is not requested. State v. 

Avila, 147 Ariz. 330, 337, 710 P.2d 440, 447 (1985). We view the instructions as a 

whole to determine de novo whether a given instruction correctly states the law. State v. 

Abdi, 226 Ariz. 361, ¶ 5, 248 P.3d 209, 211 (App. 2011).

Justification Instruction

¶6 The use of deadly physical force in self-defense is justified “[w]hen and to 

the degree a reasonable person would believe that deadly physical force is immediately 

necessary to protect himself against the other’s use or attempted use of unlawful deadly 

physical force.” A.R.S. § 13-405(A)(2). A defendant is entitled to a jury instruction on 

justification when he presents the “slightest evidence” tending to prove “a hostile 

demonstration, which may be reasonably regarded as placing the accused apparently in 

imminent danger of losing h[is] life or sustaining great bodily harm.” State v. Lujan, 

136 Ariz. 102, 104, 664 P.2d 646, 648 (1983); see also State v. Andersen, 177 Ariz. 381, 

386, 868 P.2d 964, 969 (App. 1993). Justification is not an affirmative defense; instead, 

if a defendant presents evidence of self-defense, the state must prove “‘beyond a 
5

reasonable doubt that the defendant did not act with justification.’” State v. King, 225 

Ariz. 87, ¶ 6, 235 P.3d 240, 242 (2010), quoting A.R.S. § 13-205(A). We review de 

novo whether, as a question of law, justification may be raised to defend against charges 

of manslaughter and negligent homicide. See id. ¶ 5 (interpretation of self-defense 

statute reviewed de novo); State v. Nelson, 214 Ariz. 196, ¶ 7, 150 P.3d 769, 770 (App. 

2007) (reviewing de novo allegedly incompatible jury instructions on accomplice 

liability and negligent homicide because issue involves statutory construction and 

question of law).

¶7 Almaguer supported his allegation of self-defense through the testimony of 

others. See Karr, 221 Ariz. 319, ¶ 14, 212 P.3d at 14 (defendant entitled to self-defense 

instruction if reasonably supported by defendant’s version of facts). Based on 

Almaguer’s self-defense theory, the court gave the following instruction:

If evidence was presented that raises the defense of selfdefense for second degree murder, then the State has the 

burden of proving beyond a reasonable doubt that the 

defendant did not act with such justification. If the State 

fails to carry this burden, then you must find the defendant 

not guilty of the charge.

Almaguer argues, as he did below, the instruction should have provided specifically that 

if the state failed to carry its burden to disprove the justification defense, the jury should 

find him not guilty of all charges, including the lesser offenses of manslaughter and 

negligent homicide. He asserts the court’s failure to include his requested instruction 
6

constitutes reversible error.2 See State v. Denny, 119 Ariz. 131, 134, 579 P.2d 1101, 

1104 (1978) (remanding for new trial where trial court provided no jury instruction on

state’s burden to disprove justification); State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 

(1977) (same).

¶8 The state argues that the reasonable-person standard applicable to 

justification is incompatible with the mens rea of recklessness applicable to 

manslaughter and negligent homicide,

3

and Almaguer therefore was not entitled to raise 

the justification defense as to the lesser offenses, citing decisions from Colorado and 

 

2Almaguer’s proposed instruction stated:

If evidence was presented that raises the defense of selfdefense for count one, second degree murder, and any and all 

lesser-included offenses, then the State has the burden of 

proving beyond a reasonable doubt that the defendant did not 

act with such justification. If the State fails to carry this 

burden, then you must find the defendant not guilty of the 

charges.

When the court refused his proposed instruction, Almaguer requested the court’s 

instruction be modified to read:

If evidence was presented that raises the defense of selfdefense for second degree murder, then the State has the 

burden of proving beyond a reasonable doubt that the 

defendant did not act with such justification. If the State fails 

to carry this burden, then you must find the Defendant not 

guilty of Second Degree Murder and all of the lesser included 

offenses.

That request also was denied.

3Recklessly means “a person is aware of and consciously disregards a substantial 

and unjustifiable risk . . . of such nature and degree that disregard of such risk constitutes 

a gross deviation from the standard of conduct that a reasonable person would observe in 

the situation.” A.R.S. § 13-105(10)(c).
7

New Jersey in support of its conclusion that reckless acts can never be justified. See 

People v. Castro, 10 P.3d 700, 702 (Colo. App. 2000) (defendant may not raise 

justification defense for crimes involving reckless mental state); State v. Rodriguez, 949

A.2d 197, 200-01 (N.J. 2008) (exoneration on basis of self-defense clearly inconsistent 

with finding of manslaughter).

¶9 We disagree with the state’s theory for several reasons. First, Castro is not 

persuasive because Colorado’s justification defense and statutory burdens of persuasion 

differ from those in Arizona. Compare Colo. Rev. Stat. § 18-1-704(1) (defendant 

justified in using force when “he reasonably believes” force necessary to defend against 

“what he reasonably believes to be” unlawful force by another), and People v. Pickering, 

276 P.3d 553, 555-57 & 556 n.4 (Colo. 2011) (state has no burden to disprove selfdefense justification for crime involving recklessness), with King, 225 Ariz. 87, ¶¶ 11, 

14, 235 P.3d at 243 (justification based on objective standard, permitting use of force 

only if “‘reasonable person would believe that physical force is immediately necessary 

to protect himself’”; state bears burden to disprove theory), quoting A.R.S. § 13-404(A). 

And Rodriguez lends support to our conclusion, infra at ¶¶ 12-13, that although it is 

logically impossible for a jury to find a defendant guilty of a reckless offense while at 

the same time believing the defendant acted in self-defense, instructions on the two 

theories are not incompatible; in fact both would lead a jury to the same conclusion. 949

A.2d at 201-02 (because self-defense inconsistent with commission of reckless 
8

manslaughter, self-defense constitutes complete defense to charge and jury should be 

instructed on duty to acquit if defendant’s use of deadly force justified). 

¶10 Precisely because the mens rea of recklessness is incompatible with the 

justification defense, a jury should be guided in reaching a legally correct verdict. See

State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996) (purpose of jury 

instructions to inform jury of applicable law in understandable terms; “instructions are, 

in essence, a guide to the proper verdict”); State v. Denny, 27 Ariz. App. 354, 359, 555 

P.2d 111, 116 (1976) (jury should be given both self-defense and manslaughter 

instruction so it may choose one theory). Although a jury may reach inconsistent 

verdicts, it is the trial court’s obligation to instruct it correctly on the applicable legal 

principles. Noriega, 187 Ariz. at 284, 928 P.2d at 708 (court must evaluate whether 

instructions convey with sufficient clarity all legal concepts necessary to permit jury to 

arrive at lawful verdict). 

¶11 Accordingly, Almaguer was entitled to raise justification as a complete 

defense to the homicide charge, including its lesser offenses. See A.R.S. § 13-401

(defendant may raise justification in defense of any criminal prosecution except reckless 

injury or killing of innocent third person); State v. Dorman, 167 Ariz. 153, 154-55, 805 

P.2d 386, 387-88 (1991) (manslaughter conviction vacated and remanded for new trial 

where trial court refused requested self-defense burden-of-proof instruction); State v. 

Duarte, 165 Ariz. 230, 230, 232-33, 798 P.2d 368, 368, 370-71 (1990) (purpose of 

justification instruction “to inform the jury that acquittal is mandatory if the state fails to 
9

disprove . . . a properly raised issue of self-defense”; upholding manslaughter conviction 

where instructions as whole informed jury of state’s burden); Denny, 27 Ariz. App. at 

359, 555 P.2d at 116 (theories of manslaughter and self-defense not inconsistent, and

instruction proper as to both). 

¶12 At the close of evidence, as noted earlier, the trial court instructed the jury, 

If evidence was presented that raises the defense of selfdefense for second degree murder, then the State has the 

burden of proving beyond a reasonable doubt that the 

defendant did not act with such justification. If the State fails 

to carry this burden, then you must find the defendant not 

guilty of the charge. 

(Emphasis added.) This justification instruction technically directed the jury to acquit 

Almaguer if the state failed to disprove his self-defense theory, because “the charge” 

presumably comprised any lesser included offenses. Hurley, 197 Ariz. 400, ¶¶ 13-14, 4 

P.3d at 458 (lesser included offense comprises fewer than all elements of greater crime; 

reckless manslaughter lesser included offense of knowing second-degree murder). But,

because the instruction singled out “second degree murder,” we are persuaded it was 

confusing and did not give the jury sufficient guidance. Indeed, the court would have 

been well-advised to adopt our supreme court’s recommended instruction.

4

 However, 

 

4

In the context of a manslaughter charge, the supreme court has recommended 

trial courts use the following instruction: 

If evidence was presented that raises the issue of self-defense

. . . , then the state has the burden of proving beyond a 

reasonable doubt that the defendant did not act in selfdefense. If the state fails to carry this burden, then you must 

find the defendant not guilty of the charge.
10

although we agree with Almaguer that the instruction was erroneous, see Noriega, 187 

Ariz. at 284, 928 P.2d at 708, we conclude the error was harmless because it did not 

affect the verdict. See State v. McKeon, 201 Ariz. 571, ¶ 31, 38 P.3d 1236, 1242 (App. 

2002).

¶13 The jury found Almaguer guilty of manslaughter, which implies it 

necessarily determined he either (1) acted recklessly or (2) committed second-degree 

murder upon a sudden quarrel or in a heat of passion. See A.R.S. § 13-1103(A)(1), (2). 

But, contrary to Almaguer’s suggestion, the jury could not have believed he was 

justified in his actions and also have concluded he had committed heat-of-passion 

manslaughter, because the two are mutually exclusive—heat-of-passion manslaughter 

necessarily includes second-degree murder, of which the jury could not convict if the 

state failed to disprove the act was justified. See State v. Garcia, 220 Ariz. 49, ¶¶ 6-7, 

202 P.3d 514, 516 (App. 2008) (sudden-quarrel or heat-of-passion manslaughter 

includes elements of second-degree murder); see also A.R.S. §§ 13-1103(A)(2) (person 

commits manslaughter by committing second-degree murder upon sudden quarrel or 

heat of passion), 13-1104(A) (defining second-degree murder). Accordingly, the jury 

 

Duarte, 165 Ariz. at 232, 798 P.2d at 370. The Revised Arizona Jury Instructions 

suggest the use of the following language immediately after the general “Justification for 

Self-Defense” instruction: “The State has the burden of proving beyond a reasonable 

doubt that the defendant did not act with such justification. If the State fails to carry this 

burden, then you must find the defendant not guilty of the charge.” State Bar of 

Arizona, Revised Arizona Jury Instructions (Criminal) Stat. 4.04, at 62 (2012). 

Notwithstanding these two guides, the trial court inserted the sentence, “If evidence was 

presented that raises the defense of self-defense for second degree murder, then . . . .”
11

could not have found Almaguer guilty of heat-of-passion manslaughter had it 

determined his actions were justified.

¶14 Likewise, the jury could not have found Almaguer guilty of reckless

manslaughter while believing he had acted in self-defense. The jury was properly 

instructed that to be guilty of reckless manslaughter, Almaguer must have “consciously 

disregard[ed] a substantial and unjustifiable risk,” that was “of such nature and degree 

that disregard[ing it] constitute[d] a gross deviation from the standard of conduct [of] a

reasonable person.” A.R.S. § 13-105(10)(c); see also § 13-1103(A)(1). In contrast, to 

be justified by self-defense, Almaguer could have used or threatened deadly physical 

force only “[w]hen and to the degree a reasonable person would believe” such physical 

force was immediately necessary to protect himself. § 13-405(A). Thus, the jury could 

not have believed Almaguer was justified and reasonable, while at the same time finding 

he acted recklessly with unjustified force. See State v. Vogel, 207 Ariz. 280, ¶ 28, 85 

P.3d 497, 503 (App. 2004) (based on manslaughter verdict, inferable jury did not adopt 

defendant’s claim of self-defense); cf. Rodriguez, 949 A.2d at 201 (self-defense clearly 

inconsistent with finding of manslaughter based on reckless mental state).

¶15 Finally, during closing arguments both counsel presented the jury with 

legally correct interpretations of the instructions. See State v. Johnson, 205 Ariz. 413, 

¶ 11, 72 P.3d 343, 347 (App. 2003) (jury instructions evaluated in context and in 

conjunction with closing arguments of counsel). Specifically, Almaguer’s attorney 

argued, “[I]f you find that the State did not convince you that [Almaguer] didn’t act in 
12

self-defense, then [you have] to find him not guilty of second degree murder, not guilty 

of manslaughter, and not guilty of negligent homicide. . . . [Y]ou have to find him not 

guilty of every single charge.” In a similar vein, the prosecutor argued:

You have to look at second degree murder; look at 

manslaughter; look at negligent homicide; but you have to go 

in that order. If you find him guilty. . . , your job is not done, 

because he has asserted self-defense. And that is what this 

case is really all about. . . . We don’t expect that somebody 

who is being put in a situation where force is being used 

against them to sit idly by. 

We therefore conclude the erroneous jury instruction did not influence the jury to find 

Almaguer guilty under the mistaken belief that the state did not have the burden to 

disprove his justification defense as to the lesser offense of manslaughter. See State ex 

rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8, 123 P.3d 662, 665 (2005) (jury instructions 

as whole must provide information necessary for jury to arrive at legally correct 

decision); see also McKeon, 201 Ariz. 571, ¶ 31, 38 P.3d at 1242. Because the

instructions as a whole and the arguments of counsel guided the jury to a legally 

consistent verdict, any confusion arising from the justification instruction was harmless. 

See Granville, 211 Ariz. 468, ¶ 8, 123 P.3d at 665.

Definitional Instructions

¶16 Almaguer next asserts the trial court erred by denying his request for jury 

instructions defining “proximate cause” and “voluntary act.” He argues that because he 

presented evidence the shooting had occurred during the struggle, the court’s refusal to 
13

instruct the jury on these theories violated his rights to due process and a fair trial and

requires reversal. See U.S. Const. amends. V, VI, XIV; Ariz. Const. art. II, § 4.

¶17 Almaguer contends he was entitled to an instruction on proximate cause

because the victim’s family’s struggle with him amounted to a superseding cause of the 

gun’s discharge.5 But an intervening event becomes a superseding event “only when ‘its 

occurrence was both unforeseeable and when with benefit of hindsight it may be 

described as abnormal or extraordinary.’” State v. Bass, 198 Ariz. 571, ¶¶ 11, 13, 12 

P.3d 796, 800-01 (2000), citing Petolicchio v. Santa Cruz Cnty. Fair & Rodeo Ass’n, 

177 Ariz. 256, 866 P.2d 1342 (1994). Almaguer does not argue that the victim’s and his 

family’s conduct during the struggle was unforeseeable or that the victim’s gunshot 

wound constitutes harm inconsistent with Almaguer’s producing a gun during a fistfight. 

See A.R.S. § 13-203(C)(2). Almaguer’s version of the facts did not place causation at 

issue, and the jury would not have been aided by a proximate-cause instruction. See 

State v. Smith, 160 Ariz. 507, 510, 774 P.2d 811, 814 (1989) (proximate-cause 

instruction given when causation in issue and instruction helpful to jury), as limited in 

State v. Mott, 187 Ariz. 536, 931 P.2d 1046 (1997).

6

 

5Almaguer also seems to argue he was entitled to a causation instruction because 

the “cause of death [wa]s an issue.” But the uncontroverted testimony demonstrated

there was a fight, Almaguer produced the only gun, no one but Almaguer fired it, and 

the victim died as a result of a gunshot wound. See A.R.S. § 13-203(C)(2) (causation 

established if harm occurred in manner which defendant should have known was 

rendered substantially more probable by his conduct).

6Almaguer has cited no authority showing he was entitled to his proposed 

instruction. Neither Smith, 160 Ariz. 507, 774 P.2d 811, nor Mott, 187 Ariz. 536, 931 
14

¶18 Almaguer next asserts the trial court erred by denying his request for an 

instruction defining “voluntary act,” based on his theory that he did not act voluntarily 

because his arm was “hit” during the struggle, causing the gun to discharge. But no 

evidence would have allowed the jury to reach that conclusion.

¶19 A defendant may be held criminally liable only if his conduct includes a 

voluntary act. A.R.S. § 13-201. A voluntary act is a “bodily movement performed 

consciously and as a result of effort and determination.” § 13-105(42). Involuntary acts 

include “the sorts of bodily movements that would not be ‘performed consciously and as 

a result of effort and determination.’” State v. Lara, 183 Ariz. 233, 234, 902 P.2d 1337, 

1338 (1995) (involuntary acts include heartbeat, breathing, and blinking, and “bodily 

movement while unconscious, asleep, under hypnosis, or during an epileptic fit”), 

quoting former § 13-105(34) (1994) (defining “voluntary act”).

7

 An instruction that the 

state must prove the defendant committed a voluntary act is appropriate only if there is 

evidence to support a finding of bodily movement performed unconsciously and without 

effort and determination, within the meaning of § 13-105(42). Lara, 183 Ariz. at 235, 

 

P.2d 1046, stands for the proposition that a trial court is required to instruct the jury on 

proximate cause in every case where a defendant claims there is an issue of causation. 

Although our supreme court stated in Smith, in dictum, that the instruction should be 

given when causation is in issue and it would be helpful to the jury, 160 Ariz. at 510, 

774 P.2d at 814, Mott clarified that no proximate-cause instruction is required when the 

instructions in their entirety properly inform the jury of the elements of the offense, 

including causation; it did not mandate that a proximate-cause instruction be given 

whenever a causation issue is raised. Mott, 187 Ariz. at 546, 931 P.2d at 1056.

7Renumbered § 13-105(42) by 2012 Ariz. Sess. Laws, ch. 190, § 1.
15

902 P.2d at 1339. This is not such a case. Almaguer’s claim that the gun could have 

fired as a result of another person hitting him or his gun was based on speculation, rather 

than any evidence directly supporting his theory.

¶20 Because Almaguer’s requested instructions on causation and voluntary act 

were not supported by the evidence, the trial court did not err in refusing to give them. 

State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983) (party entitled to 

instruction on any theory of case reasonably supported by evidence); see also State v. 

Moody, 208 Ariz. 424, ¶¶ 200-01, 94 P.3d 1119, 1163 (2004) (no abuse of discretion in 

court’s refusal to give voluntary-act instruction where defendant presented no testimony 

suggesting his actions not performed “consciously and as a result of effort and 

determination”).

Limitation on Cross-Examination

¶21 Almaguer next argues he was denied his constitutional right to 

confrontation when the trial court precluded him from questioning Antonio, Sr. about a

civil lawsuit Antonio, Sr. had filed against him based on the incident. See U.S. Const. 

amend. VI. He asserted that evidence of the lawsuit, which had been resolved by the 

time of trial, was relevant to demonstrate Antonio, Sr.’s motive and bias against 

Almaguer. 

¶22 The Sixth Amendment protects a defendant’s ability to prove a witness’s

motive or bias, and “Arizona case law . . . recognizes that evidence of a civil action by a 

complaining witness against the defendant, arising from the same transaction that is the 
16

subject of the prosecution, has ‘a direct bearing on the credibility of the witness to show 

bias and prejudice.’” State v. Gertz, 186 Ariz. 38, 42, 918 P.2d 1056, 1060 (App. 1995), 

quoting State v. Burris, 131 Ariz. 563, 567, 643 P.2d 8, 12 (App. 1982). As the state 

notes, however, the Confrontation Clause does not prevent a trial judge from imposing 

limits on defense counsel’s inquiry into the potential bias of a prosecution witness; 

courts retain wide latitude to impose reasonable limits on cross-examination based on, 

among other things, confusion of the issues. Delaware v. Van Arsdall, 475 U.S. 673, 

679 (1986). We review de novo rulings that implicate the Confrontation Clause. State 

v. Ellison, 213 Ariz. 116, ¶ 42, 140 P.3d 899, 912 (2006).

¶23 During Antonio, Sr.’s cross-examination, Almaguer’s counsel asked him, 

“[T]his isn’t the first time you’ve spoken to lawyers about this incident, is it?” A bench 

conference ensued, at which the prosecutor objected to any mention of the civil lawsuit, 

maintaining it was not relevant and was offered only to “paint [Antonio, Sr.] in a bad 

light.” The court sustained the state’s objection based on the potential for jury

confusion, but allowed Almaguer to use deposition transcripts from the civil proceedings

to impeach Antonio, Sr.’s testimony.

¶24 A defendant establishes a violation of the Confrontation Clause by 

demonstrating he was “prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the part of the witness, and 

thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw 

inferences relating to the reliability of the witness.’” Van Arsdall, 475 U.S. at 680,
17

quoting Davis v. Alaska, 415 U.S. 308, 318 (1974) (omission in Van Arsdall). We agree 

with Almaguer that Antonio, Sr.’s lawsuit might show a “prototypical form of bias” 

toward him, Van Arsdall, 475 U.S. at 680, because “[a] reasonable jury could believe 

that [Antonio, Sr.]’s . . . testimony . . . w[as] motivated, inter alia, by economic 

concerns.”

¶25 However, any error in excluding evidence of the lawsuit was harmless 

because it did not contribute to or affect the verdict. See Gertz, 186 Ariz. at 42, 918 P.2d 

at 1060; see also Van Arsdall, 475 U.S. at 682 (denial of opportunity to cross-examine 

adverse witness not deemed prejudicial in every case). We examine whether the error 

was harmless based on an inquiry specific to the witness, Van Arsdall, 475 U.S. at 680,

and consider “the importance of the witness’[s] testimony in the prosecution’s case, 

whether the testimony was cumulative, the presence or absence of evidence 

corroborating or contradicting the testimony of the witness on material points, the extent 

of cross-examination otherwise permitted, and, of course, the overall strength of the 

prosecution’s case.” Id. at 684.

¶26 Here, Almaguer was faced with strong, if not overwhelming, evidence of 

guilt, and Antonio, Sr. was not the only witness: Antonio, Sr., Abram, and Cota all 

testified generally consistently about the incident, particularly as to significant aspects of 

the fight and shooting from their various vantage points. Although Almaguer points out 

the testimony differed in some details, Abram corroborated Antonio, Sr.’s testimony that 

Almaguer struck the first blow, pulled out his gun, and was held down by Antonio, Sr.
18

during the altercation. And Cota too testified that Almaguer was the only individual 

with a gun. The accuracy and truthfulness of Antonio, Sr.’s testimony was not the sole 

support for the state’s case, and Almaguer’s counsel impeached his trial testimony using 

Antonio, Sr.’s prior statements made in connection with the civil lawsuit. The settled

civil action against the defendant could have indicated to the jury that Antonio, Sr. was 

biased against Almaguer. But that evidence of bias pales in comparison to Antonio Sr.’s

testimony about his son dying in his arms. See State v. Dunlap, 187 Ariz. 441, 456-57, 

930 P.2d 518, 533-34 (App. 1996) (no reversible error where motive evidence, though

erroneously excluded, cumulative); Burris, 131 Ariz. at 567, 643 P.2d at 12 (no 

reversible error where witness’s motive and interest “quite clear” in record, 

notwithstanding rejected testimony of civil lawsuit). Moreover, because the civil case

had been resolved, a desire for a positive outcome to that action could not have 

motivated Antonio, Sr.’s testimony in the criminal proceedings. We thus conclude any 

violation of Almaguer’s confrontation rights was harmless.

Denial of Mistrial

¶27 Last, Almaguer alleges the trial court erred by denying his motion for a 

mistrial on the ground other-act testimony violated his right to a fair trial. On the second 

day of trial, during Jolene’s cross-examination, Almaguer’s counsel suggested that she

had “some pretty strong feelings about” Almaguer. Jolene responded:

I sure do. He violated my house. My kids were there. My 

kid[s’] family was there. It was the day before my 

daughter’s . . . birthday. You think I’m not going to have 

hard fee[l]ing[s] about him? He destroyed everything, so 
19

many people’s lives, and he’s laughing about it. It’s not 

even cool. He goes on the run because he knows he did what 

he did. And from what I heard, it wasn’t the first time.

Jolene’s ending comment was unsolicited, in violation of a previous court order 

precluding character evidence, and apparently contrary to an admonition by the 

prosecutor. Almaguer moved for a mistrial based on the inference that Jolene had heard

Almaguer had killed before. The court denied the motion but instructed the jury that 

“the previous testimony relating to [Jolene] stating that she heard that Mr. Almaguer had 

done it before shall be stricken from the record, and shall not be considered by the jury 

in any manner.” Almaguer agreed only to the form of the instruction.

¶28 Rule 404(b), Ariz. R. Evid., prohibits evidence of other acts “to prove the 

character of a person” as a way to show he acted in conformity with the established 

character trait. Almaguer argues the trial court’s curative instruction was insufficient to 

cure the prejudice he suffered from Jolene’s statement because it generally is difficult 

for juries to disregard evidence of a defendant’s bad character, and a mistrial was 

required because Jolene’s testimony undermined his theory of self-defense. See State v. 

Anthony, 218 Ariz. 439, ¶ 40, 189 P.3d 366, 373 (2008) (erroneous admission of

unreliable other-act evidence not harmless, despite limiting instruction, where state 

repeatedly asserted other-act allegation).

¶29 But the decision to deny a mistrial rests with the discretion of the trial 

court, and “[w]e will not reverse a conviction based on the erroneous admission of 

evidence without a ‘reasonable probability’ that the verdict would have been different 
20

had the evidence not been admitted.” State v. Hoskins, 199 Ariz. 127, ¶ 57, 14 P.3d 997, 

1012-13 (2000). The record reflects abundant evidence of Almaguer’s guilt, as 

described above. Because the trial court is in the best position to assess the impact of a 

witness’s statements on the jury, we defer to its discretionary determination. State v. 

Dann, 205 Ariz. 557, ¶ 43, 74 P.3d 231, 244 (2003). Though Jolene’s outburst violated 

the court’s order, we see no reasonable probability the verdict was affected by the 

statement because it was isolated and not mentioned thereafter by the parties. See 

Anthony, 218 Ariz. 439, ¶ 40, 189 P.3d at 373. And jurors are presumed to follow the 

trial court’s instructions, including curative ones. See State v. Morris, 215 Ariz. 324, ¶ 

55, 160 P.3d 203, 215-16 (2007); State v. Prince, 204 Ariz. 156, ¶ 9, 61 P.3d 450, 452 

(2003). We see no abuse of discretion in the court’s decision to deny a mistrial.

Disposition

¶30 For all of the reasons set forth above, Almaguer’s conviction and sentence 

are affirmed.

/s/ Philip G. Espinosa

PHILIP G. ESPINOSA, Judge

CONCURRING:

/s/ Garye L. Vásquez

GARYE L. VÁSQUEZ, Presiding Judge

/s/ J. William Brammer, Jr.

J. WILLIAM BRAMMER, JR., Judge*

*A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to 

Arizona Supreme Court Order filed December 12, 2012.