IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ENRIQUE FRANCO AGUIRRE, Appellant.

No. 1 CA-CR 22-0057 

Appeal from the Superior Court in Maricopa County

No. CR2019-005386-001

The Honorable Jay R. Adleman, Judge

REVERSED AND REMANDED

COUNSEL

Ramos Law Firm, Scottsdale

By Paul A. Ramos

Counsel for Appellant

Arizona Attorney General’s Office, Phoenix

By Joshua C. Smith, 

Michael Woodburn (certified limited practice student) 

Counsel for Appellee

FILED 4-4-2023
STATE v. AGUIRRE

Opinion of the Court

2

OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which 

Presiding Judge Brian Y. Furuya and Judge Paul J. McMurdie joined.

C A M P B E L L, Judge:

¶1 Enrique Franco Aguirre appeals his conviction and sentence 

for discharging a firearm at a nonresidential structure, arguing insufficient 

evidence supports his conviction. We hold that a conviction for discharging 

a firearm at a nonresidential structure requires evidence that a defendant 

“knowingly” shot “at” a residential structure, as opposed to firing at a 

person and inadvertently striking a structure. See A.R.S. § 13-1211(B). 

Because the evidence established only that Aguirre knowingly fired his 

weapon at a person and recklessly or accidentally hit the structure, we 

reverse and remand.

BACKGROUND1

¶2 In 2018, after engaging in a brief physical altercation outside 

a nightclub, Aguirre fired multiple pistol shots at John,

2 striking him several 

times. Two stray bullets hit the nightclub: one passing through an open

window and striking a metal tripod inside, the other striking the building’s 

exterior and damaging the block wall. The State charged Aguirre with one 

count of discharging a firearm at a nonresidential structure, a class 3 felony

(count one); four counts of aggravated assault, class 3 felonies (counts two 

through five); and three counts of endangerment, class 6 felonies (counts 

six through eight). Aguirre claimed he acted in self-defense. See A.R.S.

§ 13-405(A) (“A person is justified in threatening or using deadly physical 

force against another . . . [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.”).

¶3 At trial, John testified that he regularly frequented the

nightclub and had loaned money to Aguirre, who worked as a security 

1 We view the evidence in the light most favorable to upholding

Aguirre’s conviction and resolve all reasonable inferences against him. See 

State v. Davolt, 207 Ariz. 191, 212, ¶ 87 (2004). 

2 We use a pseudonym to protect the non-party’s identity.
STATE v. AGUIRRE

Opinion of the Court

3

guard. When John left the nightclub on the night of the shooting, he found 

Aguirre waiting for him in the parking lot. According to John, Aguirre said

he would not repay the loan. To avoid a confrontation, John responded that 

“it’s not the place to talk about [it].” John testified that Aguirre punched 

him, and John then pushed Aguirre. As John walked toward his vehicle, he

looked back and saw that Aguirre had a gun pointed “at [his] head.”

Quickly grabbing a gun from his truck, John aimed it at Aguirre, who fired 

his weapon at John while running toward him. John asserted that, although 

he was armed at the time, he never returned fire.

¶4 Following the State’s case-in-chief, the superior court denied 

Aguirre’s motion for judgment of acquittal under Arizona Rule of Criminal 

Procedure 20. Aguirre then testified that he shot John in 

self-defense. Explaining he knew John as a regular customer at the 

nightclub, Aguirre described him as a violent, “bad man,” and a “gun guy”

who was “associated with the cartel.” Denying that he had borrowed

money from John, Aguirre testified that he confronted him that night to 

address threats John had made on a previous evening when Aguirre asked 

him to remove his firearm before going into the club. 

¶5 When questioned about their physical altercation, Aguirre 

testified that John instigated it, orally threatening him and shoving him 

before he punched back in retaliation. Acknowledging that he was the first 

to brandish a weapon, Aguirre explained that he believed John intended to 

retrieve a gun when he walked to his vehicle. Aguirre testified that he 

pointed his weapon at John while repeatedly warning him “not to pull out 

his gun.” Contrary to John’s testimony, Aguirre recounted that he did not 

shoot until after John grabbed his gun, turned toward him, and began 

firing.

¶6 A jury acquitted Aguirre on all of the aggravated assault

charges but found him guilty of discharging a firearm at a nonresidential 

structure. The jurors could not reach verdicts on the endangerment counts. 

The superior court sentenced Aguirre to a five-year term of imprisonment.

Aguirre timely appealed. 

DISCUSSION

¶7 Aguirre challenges the sufficiency of the evidence to support 

his conviction. He asserts the State failed to show he targeted his shots “at”

the nightclub.

¶8 We review a claim of insufficient evidence de novo. State v. 

West, 226 Ariz. 559, 562, ¶ 15 (2011). Sufficient evidence on which a 
STATE v. AGUIRRE

Opinion of the Court

4

reasonable jury can convict may be direct or circumstantial and “is such 

proof that reasonable persons could accept as adequate” to “support a 

conclusion of defendant’s guilt beyond a reasonable doubt.” State v. 

Borquez, 232 Ariz. 484, 487, ¶¶ 9, 11 (App. 2013). “In determining whether 

substantial evidence exists, we view the facts in the light most favorable to 

sustaining the jury verdict and resolve all inferences against [the 

defendant].” State v. Stroud, 209 Ariz. 410, 412, ¶ 6 (2005). In evaluating the

sufficiency of the evidence, we test the evidence “against the statutorily 

required elements of the offense,” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App. 

2005), and “do not reweigh the evidence to decide if [we] would reach the 

same conclusions as the trier of fact[,]” Borquez, 232 Ariz. at 487, ¶ 9 (internal 

quotation omitted). 

¶9 We also interpret statutes de novo. State v. Neese, 239 Ariz. 84, 

86, ¶ 8 (App. 2016). “Statutory interpretation requires us to determine the 

meaning of the words the legislature chose to use.” S. Ariz. Home Builders 

Ass’n v. Town of Marana, ___ Ariz. ___, ___, ¶ 31, 522 P.3d 671, 676 (2023). 

“We do so neither narrowly nor liberally, but rather according to the plain 

meaning of the words in their broader statutory context, unless the 

legislature directs us to do otherwise.” Id.

¶10 Under A.R.S. § 13-1211(B), “[a] person who knowingly 

discharges a firearm at a nonresidential structure is guilty of a class 3 

felony.” Aguirre asserts the statute requires that he must have intended to 

hit the structure when firing his weapon, and no evidence supported his 

conviction because he “targeted” John, “not the business.” In making this 

claim, Aguirre does not deny that he discharged his firearm or that two 

bullets struck the nightclub. The State counters that it needed only to prove 

that Aguirre was aware he was shooting in the direction of the nightclub. 

In essence, the State argues it is enough if Aguirre knew the structure was 

there and knew he discharged the weapon in the nightclub’s general 

direction. The two positions require us to interpret whether, under the 

statute, the State must prove a defendant aimed at the structure to be guilty 

of the crime.

¶11 “If a statute defining an offense prescribes a culpable mental 

state that is sufficient for commission of the offense without distinguishing 

among the elements of such offense, the prescribed mental state shall apply 

to each such element unless a contrary legislative purpose plainly appears.” 

A.R.S. § 13-202(A). Applying this rule of construction here, A.R.S. 

§ 13-1211(B) prescribes the culpable mental state of knowingly without 

differentiating between the elements of the offense. Thus, the mens rea of 

knowingly must be applied to each element of this offense—including the 
STATE v. AGUIRRE

Opinion of the Court

5

requirement that the person discharged a firearm “at” a non-residential

structure. The court gave the standard instruction for the charged crime: 

“The crime of discharging a firearm at a nonresidential structure requires 

proof that the defendant knowingly: 1. Discharged a firearm; 2. At a 

nonresidential structure.” See Revised Arizona Jury Instructions (“RAJI”) 

Standard Criminal 12.11 (6th ed. 2022).

¶12 While Aguirre does not challenge the jury instructions given, 

he claims the trial evidence was inadequate to support the assertion that he 

shot ‘at’ a nonresidential structure. He challenges his conviction on that 

basis. Given Aguirre’s testimonial admissions, the only question is whether 

the State presented sufficient evidence that he “knowingly” discharged his 

firearm “at” the non-residential structure.

¶13 We reject the State’s interpretation of the statute because it 

would require us to interpret the statute to apply a reckless mental state to 

an element of the offense. A.R.S. § 13-105(10)(c) (“‘Recklessly’ means, with 

respect to a result or to a circumstance described by a statute defining an 

offense, that a person is aware of and consciously disregards a substantial 

and unjustifiable risk that the result will occur or that the circumstance 

exists.”). But knowingly engaging in conduct requires more. As statutorily 

defined, “knowingly” means “with respect to conduct or to a circumstance 

described by a statute defining an offense, that a person is aware or believes 

that the person’s conduct is of that nature or that the circumstance exists.”

A.R.S. § 13-105(10)(b). 

¶14 The statute does not define the word “at,” so we apply its 

common meaning and look to dictionaries for guidance. See State v. Pena, 

235 Ariz. 277, 279, ¶ 6 (2014). “At” is used “to indicate the goal of an 

indicated or implied action or motion.” At, Merriam-Webster’s College 

Dictionary (11th ed. 2018). A “goal” is “the end toward which effort is 

directed.” Goal, Merriam-Webster’s College Dictionary (11th ed. 2018). A 

person aims to “indicate the goal” when discharging a firearm. See Aim, 

Merriam-Webster’s College Dictionary (11th ed. 2018) (To “aim” is to 

“direct toward a specified object or goal.”).

¶15 In the context of discharging a firearm “at a nonresidential” 

structure, the statute requires that the defendant knowingly aimed at the 

structure—not simply that he was aware of the risk that he may miss his 

intended target and the projectile might end up lodged in a non-residential

structure. See A.R.S. § 13-1211(B) (emphasis added). Had the legislature 

intended this result, the statute would include a mens rea of recklessly 

engaging in conduct instead of knowingly doing so. This interpretation of 
STATE v. AGUIRRE

Opinion of the Court

6

A.R.S. § 13-1211(B) also ensures that the provision “at a non-residential 

structure” is given meaning. See Nicaise v. Sundaram, 245 Ariz. 566, 568, ¶ 11 

(2019) (“A cardinal principle of statutory interpretation is to give meaning, 

if possible, to every word and provision so that no word or provision is 

rendered superfluous.”).

¶16 The State presented evidence that Aguirre knowingly shot at

John, and Aguirre admitted as much during his trial testimony. But there is 

no evidence that Aguirre was aware of or believed he was shooting “at” the 

nightclub. The State argued in closing: “The defendant knowingly -– does 

he have any intention –- does he knowingly, was he aware of the risk that 

when he’s shooting, at his intended target, does he know the bullets can go 

into [the nightclub]? Yes.” But the State’s argument outlines the mens rea 

of a reckless act—not a knowing act, which is what the State was required 

to prove. See A.R.S. § 13-105(10)(c).

¶17 Without question, two stray bullets struck the nightclub, but 

that fact, without more, shows only that Aguirre acted recklessly or 

carelessly by striking the structure. And the doctrine of transferred intent 

cannot be used to reach the required mens rea either. This doctrine applies 

to crimes that require a showing of intentional actions. Because the 

transferred intent doctrine does not apply to crimes that require a 

“knowingly” mens rea, the fact that Aguirre knowingly shot at John does 

not transfer his intention so as to prove that he knowingly shot at the 

nightclub. See A.R.S. § 13-203(B), (C). 

¶18 The State argues that evidence that “Aguirre discharged his 

firearm from the club parking lot while facing the club” substantially 

supported the jury’s finding that he knowingly discharged his firearm at 

the nightclub. We disagree. Under the statute, the State needed to prove not 

that Aguirre was aware he was shooting in the general direction of the 

nightclub, but that he was aware or believed that he was shooting “at” the 

nightclub. See A.R.S. §§ 13-105(10)(b), -1211(B).

¶19 Because Aguirre testified that he knowingly shot at John—

thereby admitting all the elements of aggravated assault—the jury must 

have found he acted in self-defense to acquit him of the aggravated assault 

charges. See A.R.S. §§ 13-1203(A)(1) (defining assault as “intentionally, 

knowingly or recklessly causing any physical injury to another person”); 

-1204(A)(2) (defining aggravated assault as committing assault by using “a 

deadly weapon or dangerous instrument”). If Aguirre discharged his 

weapon in self-defense at his intended target, John, his poor aim was not 

evidence of the mens rea necessary to sustain a conviction for knowingly 
STATE v. AGUIRRE

Opinion of the Court

7

discharging his firearm “at” a nonresidential structure. See A.R.S. § 13-

203(B).

¶20 To be sure, even when discharging a firearm in self-defense, 

the shooter bears a responsibility to the innocent public. As the State 

charged in this case, endangerment charges are appropriate if a defendant 

imperils others while defending himself against the aggression of another.

See A.R.S. § 13-1201 (“A person commits endangerment by recklessly 

endangering another person with a substantial risk of imminent death or 

physical injury.”) But in this case, the jury did not convict Aguirre of either 

count of endangerment charged by the State. 

CONCLUSION

¶21 Because no evidence supports Aguirre’s conviction and 

sentence, we reverse and remand for further proceedings consistent with 

this opinion.