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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND 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

TONY LEE HORTON, Appellant.

No. 1 CA-CR 15-0179 

Appeal from the Superior Court in Maricopa County 

No. CR2013-446217-001 SE

The Honorable Sam J. Myers, Judge 

The Honorable Robert L. Gottsfield, Judge (Retired)

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Joseph T. Maziarz 

Counsel for Appellee 

DeBrigida Law Offices, P.L.L.C., Glendale 

By Ronald M. DeBrigida, Jr. 

Counsel for Appellant 

Tony Lee Horton, Tucson 

Appellant
STATE v. HORTON 

Decision of the Court 

2

MEMORANDUM DECISION 

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

Presiding Judge Peter B. Swann and Judge Donn Kessler joined. 

W I N T H R O P, Judge: 

¶1 Tony Lee Horton (“Appellant”) appeals his convictions and 

sentences for two counts of aggravated assault and one count of disorderly 

conduct. Appellant’s counsel has filed a brief in accordance with Smith v. 

Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and 

State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating he has searched the 

record for error but failed to identify “any arguable issues of merit.” 

Appellant’s counsel therefore requests that we review the record for 

fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 

(App. 1999) (stating that this court reviews the entire record for reversible 

error). This court allowed Appellant to file a supplemental brief in propria 

persona, and Appellant has done so, raising several issues that we address. 

¶2 We have appellate jurisdiction pursuant to the Arizona 

Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)

sections 12-120.21(A)(1), 13-4031, and 13-4033(A).1 Finding no reversible 

error, we affirm. 

FACTS AND PROCEDURAL HISTORY2

¶3 On November 7, 2013, a grand jury issued an indictment 

charging Appellant with aggravated assault, a class three dangerous felony. 

The State later filed an allegation of aggravating circumstances other than 

prior convictions, see A.R.S. § 13-701, and an allegation of a violent crime 

pursuant to A.R.S. § 13-901.03. 

 

1 We cite the current version of all applicable statutes because no 

revisions material to this decision have occurred since the date of the 

offenses. 

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

and resolve all reasonable inferences against Appellant. See State v. Kiper, 

181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). 
STATE v. HORTON 

Decision of the Court 

3

¶4 Appellant filed a motion to remand to the grand jury for a 

redetermination of probable cause, arguing he had requested that he be 

allowed to testify and present a video of the incident to the grand jury, but 

the State had failed to notify the grand jury of this information. See A.R.S. 

§ 21-412. The State did not object, and the trial court granted the motion. 

On April 3, 2014, a grand jury issued a new indictment charging Appellant 

with Count I, aggravated assault by use of a deadly weapon or dangerous 

instrument, a class three dangerous felony; Count II, aggravated assault by 

intentionally, knowingly, or recklessly causing serious physical injury, a 

class three dangerous felony; and Count III, disorderly conduct, a class one 

misdemeanor. See A.R.S. §§ 13-1203, -1204, -2904. 

¶5 At trial, the State presented the following evidence: On 

September 22, 2013, shortly after R.C.’s family returned home from church, 

the family went outside to conduct footraces between R.C.’s seventeenyear-old son and a friend. The races were conducted on the street in front 

of Appellant’s house.

¶6 At the same time, Appellant was inside preparing dinner with 

a small paring knife, when he heard a “commotion” outside. Because 

Appellant’s wife was ill, he went outside and asked R.C.’s family to hold 

the races somewhere other than the street in front of his house. R.C. 

responded, “Man, you know, basically we’re not doing anything. The kids 

are out here just having fun. We’re running. You know we’re not doing 

anything.” Appellant announced he was going back inside his house, and 

R.C. replied, “You gotta do what you gotta do, man.” Appellant then 

returned to his home.3

¶7 Shortly thereafter, the two teenagers ran another race on the 

street in front of Appellant’s house. When Appellant realized R.C.’s family 

had not immediately left the area, Appellant exited his home with the 

paring knife still in his right hand and walked toward R.C., who at the same 

time moved toward Appellant. 

¶8 A neighbor’s surveillance video introduced as evidence at 

trial indicates that, as the two men confronted one another on the curb 

between Appellant’s property and the street, R.C. punched Appellant, and 

Appellant immediately slashed at R.C. with the knife. A brief altercation 

ensued, with R.C. continuing to throw punches and Appellant swinging the 

 

3 Appellant testified he went back inside his house after R.C. 

responded, “Okay, Tone,” which Appellant understood to mean R.C. had 

agreed to move the races elsewhere and “it was done.”
STATE v. HORTON 

Decision of the Court 

4

knife at R.C. several times, cutting R.C.’s head, ear, hand, and chin. The 

final swing of the paring knife resulted in the knife blade breaking off in 

R.C.’s face before falling to the ground. 

¶9 Appellant retreated toward his garage, and R.C. ran to his 

home and retrieved a handgun. Brandishing the gun, R.C. went outside to 

his driveway, where he could see Appellant in his garage across the street, 

and Appellant could see him. R.C. pointed the gun at Appellant, but 

eventually went back inside, and both R.C.’s wife and Appellant called 911 

to report the incident. R.C. and Appellant were separately treated at local 

hospitals,4 and Appellant was later arrested. 

¶10 The jury found Appellant guilty as charged of two counts of 

aggravated assault and one count of disorderly conduct. The jury also 

found the offenses involved the infliction or threatened infliction of serious 

physical injury; the use, threatened use, or possession of a deadly weapon 

or dangerous instrument; and physical, emotional, or financial harm to the 

victim. 

¶11 The court sentenced Appellant to concurrent, aggravated 

terms of fifteen years’ imprisonment for Counts I and II, and a term of 

thirty-nine days in jail for Count III, with credit for thirty-nine days of 

presentence incarceration applied to each count. Appellant filed a timely 

notice of appeal. 

ANALYSIS 

¶12 Appellant raises numerous arguments in his supplemental 

brief, many of which are intertwined with assertions that his trial and 

appellate counsel have provided him ineffective assistance. Because claims 

for ineffective assistance of counsel must be brought through Rule 32 

proceedings, we do not address his arguments challenging the effectiveness 

of counsel on direct appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 

525, 527 (2002).5 However, we address his other arguments as follows: 

 

4 Appellant’s right index finger had been bent back over his thumb 

during the altercation, and he was treated for a possible broken hand. 

5 For the same reasoning, we deny Appellant’s “Application to Hold 

[Appellate Counsel] in Contempt,” filed January 29, 2016.
STATE v. HORTON 

Decision of the Court 

5

I. Vindictive Prosecution in Grand Jury Proceedings 

¶13 Appellant argues fundamental error occurred because the 

prosecutor added charges of aggravated assault and disorderly conduct 

during the second grand jury proceedings, ostensibly in retaliation for the 

motion to remand the case to the grand jury filed by defense counsel. 

Generally, review of challenges relating to grand jury proceedings must be 

sought by special action before trial. State v. Gortarez, 141 Ariz. 254, 258, 686 

P.2d 1224, 1228 (1984). Absent an indictment the State knows was partially 

based on perjured, material testimony, a defendant may not challenge 

matters relevant to the grand jury proceedings by appeal from conviction. 

State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995). Appellant makes 

no claim of perjured testimony, and is therefore arguably precluded from 

challenging the grand jury proceedings on direct appeal. See id.

¶14 Even assuming Appellant’s argument is properly before us, 

however, selectivity as to the best means of going forward with a 

prosecution is generally best left to the discretion of the prosecutor. State v. 

Jahns, 133 Ariz. 562, 568, 653 P.2d 19, 25 (App. 1982). “At the pretrial stage 

the prosecutor has not gone through the effort of a trial and therefore has 

less at stake and less motive to act vindictively,” and even “[i]f a prosecutor 

acts vindictively before trial, the defendant still retains the protection of a 

jury trial.” Id. (citation omitted). Accordingly, we will not presume 

vindictiveness, and the burden is on Appellant to establish it. Id. at 569, 653 

P.2d at 26. We conclude he has not done so. 

¶15 The record supports the conclusion that the prosecutor acted 

within his discretion by adding Counts II and III to the sought-after 

indictment. The original indictment charged Appellant with Count I, 

aggravated assault for using a deadly weapon or dangerous instrument. 

The prosecutor did not oppose remanding for a redetermination of 

probable cause, and the new indictment added Count II, aggravated assault 

for causing serious physical injury to the victim, and Count III, disorderly 

conduct, for “engaging in fighting, violent or seriously disruptive 

behavior.” The facts presented at trial supported these additional charges, 

as indicated by the jury’s decision to convict Appellant of all charges. 

Moreover, “a certain amount of punitive intent . . . is inherent in any 

prosecution.” State v. Mieg, 225 Ariz. 445, 448, ¶ 12, 239 P.3d 1258, 1261 

(App. 2010) (citation omitted). On this record, Appellant has not shown 

either actual vindictiveness on the part of the prosecutor or circumstances 

presenting a realistic likelihood of vindictiveness. See id. at 447-48, ¶ 11, 239 

P.3d at 1260-61.
STATE v. HORTON 

Decision of the Court 

6

II. Donald Hearing 

¶16 On October 3, 2014, the trial court held a settlement 

conference pursuant to State v. Donald, 198 Ariz. 406, 411, ¶ 9, 10 P.3d 1193, 

1198 (App. 2000), to explain the range of sentence that could be imposed if 

Appellant refused the State’s plea offer.

6 Appellant rejected the plea offer 

and exercised his right to a jury trial. Appellant asserts both defense 

counsel and the judge who presided over the hearing were not fully familiar 

with his case and, accordingly, the Donald hearing was a “sham.”7

¶17 As we have recognized, Appellant’s claim of ineffective 

assistance of counsel must be resolved in a Rule 32 proceeding. See Spreitz, 

202 Ariz. at 3, ¶ 9, 39 P.3d at 527. As for Appellant’s claim that the trial 

judge’s lack of familiarity with Appellant’s case resulted in a hearing that 

was not meaningful, the record does not support such a claim. At the 

hearing, the court advised Appellant of the range of potential sentence he 

faced if convicted at trial, including the maximum possible enhanced and 

aggravated sentence, and the range of sentence he faced if he accepted the 

State’s offer to plead guilty to one class three non-dangerous felony. 

Furthermore, in his supplemental brief, Appellant acknowledges the court 

“told me what I may get.” Appellant refused the State’s offer, and it is clear 

from the record he was not interested in accepting that offer. On this record, 

the trial court did not deny Appellant the opportunity to make an informed 

decision in rejecting the plea agreement. 

III. Jury Selection 

¶18 Appellant argues reversible error occurred because six jurors 

were improperly excused during jury selection. The record indicates, 

however, that one of the jurors Appellant cites as being improperly excused 

(Juror 47) was retained and served on the jury. Of the others, three were 

dismissed for cause, and two were dismissed after peremptory strikes.

 

6 Donald sets forth an attorney’s duty to explain all significant plea 

proposals so a defendant may make a reasonably informed decision to 

accept or reject a plea offer. Defense counsel’s duties include 

communicating the terms of the offer as well as the merits of the offer in 

relation to a defendant’s chances at trial. 

7 Appellant refers to both the October 3, 2014 hearing and his March 

13, 2015 sentencing hearing as Donald hearings. Only the October 3, 2014 

hearing was a Donald hearing. 
STATE v. HORTON 

Decision of the Court 

7

¶19 The first prospective juror excused for cause (Juror 44) was 

excused for failure to understand the proceedings in English, and the 

second (Juror 13) was excused for financial hardship. Difficulty 

understanding English is an appropriate ground for excusing a prospective 

juror, see State v. Sanderson, 182 Ariz. 534, 539, 898 P.2d 483, 488 (App. 1995); 

A.R.S. § 21-202(B)(3), as is “undue or extreme . . . financial hardship,” A.R.S. 

§ 21-202(B)(4); accord State v. Payne, 233 Ariz. 484, 497, ¶ 11, 314 P.3d 1239, 

1252 (2013) (citing A.R.S. § 21-202(B)(4), (6)). The third juror excused for 

cause (Juror 38), a former law enforcement officer in the United States Air 

Force, was excused by the court after stating he would have “difficulty 

sitting as a fair juror” due to his tendency to lean toward law enforcement. 

In general, a biased juror who cannot reasonably render a fair or impartial 

verdict should be struck from the jury panel. See Payne, 233 Ariz. at 499, 

¶ 24, 314 P.3d at 1254; see also Ariz. R. Crim. P. 18.4(b) (“When there is 

reasonable ground to believe that a juror cannot render a fair and impartial 

verdict, the court, on its own initiative, or on motion of any party, shall 

excuse the juror from service in the case.”).

¶20 The two prospective jurors dismissed through peremptory 

strikes (Jurors 45 and 49) were both struck by defense counsel. To the extent 

Appellant asserts defense counsel’s performance was deficient based on 

these strikes, Appellant may raise this argument in Rule 32 proceedings. 

See Spreitz, 202 Ariz. at 3, ¶ 9, 39 P.3d at 527. Moreover, although Appellant 

asserts the dismissal of several of these prospective jurors who were former 

or current law enforcement officers violated the prohibition against 

discrimination espoused in Batson v. Kentucky, 476 U.S. 79, 96 (1986), law 

enforcement officers are not a cognizable group that has historically been 

subjected to discrimination. Accordingly, on this record, Batson is not 

applicable. 

IV. Fair Trial and Alleged Perjury 

¶21 Appellant argues he was denied a fair trial because Arizona’s 

Victims’ Bill of Rights allowed R.C. to be in the courtroom during the trial 

and to refuse a pretrial interview. See Ariz. Const. art. 2, § 2.1(A)(3), (5). 

Appellant maintains that, as a result, R.C. was able to commit perjury by 

modifying his testimony to fit the State’s theory of the crimes.

¶22 A victim in a criminal proceeding has the right to be present 

at all criminal proceedings. See Ariz. Const. art. 2, § 2.1(A)(3); see also Ariz. 

R. Crim. P. 9.3(a), 39(b)(4); State v. Fulminante, 193 Ariz. 485, 502, 975 P.2d 

75, 92 (1999) (recognizing that a Victims’ Bill of Rights excepting the victim 

from the rule that allows a defendant to exclude witnesses from trial while 
STATE v. HORTON 

Decision of the Court 

8

other witnesses testify does not violate a defendant’s due process rights 

absent a showing of actual prejudice). A victim also has the right to refuse 

pretrial interviews on behalf of the defendant. See Ariz. Const. art. 2, 

§ 2.1(A)(5); see also Ariz. R. Crim. P. 39(b)(11); A.R.S. § 13-4433(A); State v. 

Towery, 186 Ariz. 168, 179, 920 P.2d 290, 301 (1996). 

¶23 Appellant’s claim that R.C. committed perjury and thereby 

prejudiced Appellant is not supported by the record. A person commits 

perjury in part by making (1) a false sworn statement in regard to a material 

issue, believing it to be false, or (2) a false unsworn declaration or statement 

in regard to a material issue that the person subscribes as true under penalty 

of perjury, believing it to be false. A.R.S. § 13-2702. However, 

“[c]ontradictions and changes in a witness’s testimony alone do not 

constitute perjury.” Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991). In 

this case, defense counsel sought to impeach R.C.’s testimony by pointing 

out inconsistencies in his testimony with his prior statements and the video 

of the fight. These inconsistencies, although relevant to the jury’s 

determination of R.C.’s credibility, do not constitute demonstrably false 

and material misstatements rising to the level of perjury. 

V. Appellant’s Claim of Self-Defense 

¶24 Appellant notes R.C. admitted he possessed a gun at some 

point during the incident, and argues that R.C.’s admission necessitated a 

jury finding that Appellant acted in self-defense. The trial court instructed 

the jury as to both “Justification for Self-Defense” and “Justification for SelfDefense—Deadly Physical Force,” but in finding Appellant guilty as 

charged, the jury rejected Appellant’s claims of self-defense. We find no 

reversible error. 

¶25 As the trier of fact, it is the jury’s province to weigh the 

evidence and determine witnesses’ credibility. State v. Fimbres, 222 Ariz. 

293, 297, ¶ 4, 213 P.3d 1020, 1024 (App. 2009). In general, we defer to the 

jury’s findings of fact, credibility assessments, and resolution of conflicts in 

the evidence as long as the jury’s findings are supported by the record and 

not clearly erroneous. See State v. Grell, 212 Ariz. 516, 528, ¶ 58, 135 P.3d 

696, 708 (2006); Fimbres, 222 Ariz. at 300, ¶ 21, 213 P.3d at 1027.

¶26 Evidence in the record—including the video of the incident 

and the testimony of R.C. and others—supports the jury’s verdicts. The 

State presented evidence from which the jury could have found beyond a 

reasonable doubt that Appellant was the aggressor and/or used more 

physical force than appeared necessary to a reasonable person in the 
STATE v. HORTON 

Decision of the Court 

9

situation, and that R.C. did not retrieve his gun until after Appellant had 

concluded the crimes of which he was convicted. The jury’s verdicts are 

supported by evidence in the record and are not clearly erroneous. 

VI. Alleged Improper Shift of the Burden of Proof 

¶27 Appellant asserts the court’s instructions improperly shifted 

the burden of proof to him and were generally conflicting and confusing. 

We disagree. The court properly instructed the jury that the State bore both 

the burden of proving Appellant guilty beyond a reasonable doubt and the 

burden of proving beyond a reasonable doubt that Appellant did not act 

with legal justification. The court further instructed the jury that if it found 

the State failed to carry its burden, the jury “must find [Appellant] not 

guilty of the charge.” Contrary to Appellant’s assertions, the court’s 

instructions did not improperly shift the burden of proof to him. Moreover, 

Appellant has not shown error, much less reversible error, in any of the 

court’s other instructions.

VII. International Covenant on Civil and Political Rights 

¶28 Appellant claims that, based primarily on the issues in his 

supplemental brief that we have addressed and rejected, his convictions 

violate the International Covenant on Civil and Political Rights (“ICCPR”).

8 

The ICCPR does not create judicially-enforceable individual rights, is not 

self-executing, and has not been given effect by congressional legislation. 

United States v. Duarte-Acero, 296 F.3d 1277, 1283 (11th Cir. 2002). 

Accordingly, the ICCPR is not binding on courts of the United States. See 

Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001). Moreover, even assuming 

Appellant may invoke this covenant, he has raised no issues constituting 

reversible error. 

 

8 See Flores v. S. Peru Copper Corp., 414 F.3d 233, 257 n.35 (2d Cir. 2003) 

(“The United States Senate gave its advice and consent to ratification of the 

ICCPR on April 2, 1992, see International Covenant on Civil and Political 

Rights, 102d Cong., 138 Cong. Rec. S4781, S4784, and it was ratified by the 

President on June 8, 1992, see I United Nations, Multilateral Treaties 

Deposited with the Secretary General 165 (2003). However, the treaty was 

ratified with numerous reservations conforming the United States’

obligations under the ICCPR to the requirements of the Constitution, and 

with the declaration that the ICCPR is not self-executing.” (citations 

omitted)).
STATE v. HORTON 

Decision of the Court 

10

 VIII. Meaningful Review 

¶29 Appellant argues his Fourteenth Amendment rights have 

been violated because he lacked the tools for meaningful review of the 

record.9 Even assuming arguendo that Appellant’s argument is properly 

before us,10 we find no error. 

¶30 Appellant first maintains his attempts to obtain a transcript of 

an October 14, 2013 hearing on R.C.’s request for an order of protection have 

been futile. However, Appellant attaches a transcript of that hearing to his 

supplemental brief, and he therefore cannot show error on this basis. 

¶31 Appellant also states that much of the record he has received 

from the trial court is on a CD, and he asserts he has had only limited time 

to access a computer and review the CD while in the custody of the State. 

He therefore requests greater computer access in the prison library, access 

to document drafting software and a printer, and an order that the State 

allow him to purchase a personal computer. Although the State is 

constitutionally required to supply an inmate with basic materials 

necessary to prepare legal papers, it is not obligated to supply him with 

ancillary supplies, such as computer software for drafting briefs or printing 

those briefs. See Knight, 161 Ariz. at 556-57, 779 P.2d at 1295-96. Moreover, 

despite Appellant’s complaints, he acknowledges he has received the 

record—albeit in the form of a CD—and he has had access to the record on 

the CD through use of the prison library computer, even if that access has 

not been unfettered. He does not argue that portions of the record are 

 

9 In part, the Fourteenth Amendment prohibits states from depriving 

a person of life, liberty, or property without due process of law. U.S. Const. 

amend. XIV, § 1. 

10 Generally, when an inmate claims a denial of access to the courts, a 

special action encompassing the common law writ of mandamus is 

appropriate. Salstrom v. State, 148 Ariz. 382, 384, 714 P.2d 875, 877 (App. 

1986); see also Bustamonte v. Ryan, 175 Ariz. 327, 328, 856 P.2d 1205, 1206 

(App. 1993) (holding that “[t]he proper method for an inmate to secure 

access to a law library is to seek special action relief in the nature of the 

common law writ of mandamus”); Knight v. Superior Court (Ibarra), 161 Ariz. 

551, 553–54, 779 P.2d 1290, 1292–93 (App. 1989) (“It is well established in 

Arizona that, when an inmate is denied access to the courts . . . the 

appropriate remedy is to seek special action relief, which encompasses the 

common law writ of mandamus.”).
STATE v. HORTON 

Decision of the Court 

11

missing or inaccessible, indicate what further information he seeks to 

review, or indicate what, if any, paralegal or other legal assistance he may 

have received. Further, at no time before filing his supplemental brief did 

Appellant request additional time to review the record or file his brief. We 

also note Appellant’s supplemental brief is quite extensive, with numerous 

citations to the record, as well as legal authority, indicating he has had 

substantial access to the record. Consequently, on this record, we cannot 

conclude Appellant’s ability to present meritorious arguments to the court 

has been hindered.11

 IX. Other Issues 

¶32 We have reviewed the entire record for reversible error and 

find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, 

¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and 

supports the verdicts. Appellant was represented by counsel at all stages 

of the proceedings and was given the opportunity to speak at sentencing. 

The proceedings were conducted in compliance with his constitutional and 

statutory rights and the Arizona Rules of Criminal Procedure. 

¶33 After filing of this decision, defense counsel’s obligations 

pertaining to Appellant’s representation in this appeal have ended. 

Counsel need do no more than inform Appellant of the status of the appeal 

and of his future options, unless counsel’s review reveals an issue 

appropriate for petition for review to the Arizona Supreme Court. See State 

v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has 

thirty days from the date of this decision to proceed, if he desires, with a pro 

per motion for reconsideration or petition for review. 

 

11 Also, to the extent Appellant suggests his appellate counsel has not 

effectively assisted him in obtaining court documents and transcripts, he 

must raise that issue in a Rule 32 proceeding. See Spreitz, 202 Ariz. at 3, ¶ 9, 

39 P.3d at 527.
STATE v. HORTON 

Decision of the Court 

12

CONCLUSION 

¶34 Appellant’s convictions and sentences are affirmed.