State v. Felix
349 P.3d 1117
Ariz. Ct. App.2015Background
- Felix, a confessed gang member, was implicated after an AK-47 was fired into a house where ten people (including a 16‑month‑old child J.V.) were present; no one was physically hit.
- Felix was charged with attempted first‑degree murder (10 counts), aggravated assault with a deadly weapon (10 counts), assisting a criminal street gang, and endangerment.
- The jury acquitted on attempted first‑degree murder but convicted Felix of ten counts of the lesser‑included attempted second‑degree murder, ten aggravated assaults, aiding a criminal street gang, and endangerment; jury found gang‑intent enhancements.
- Trial court sentenced concurrent prison terms on many counts and a consecutive 15‑year term for aggravated assault of the child as a dangerous crime against children.
- On appeal Felix raised (1) erroneous jury instructions on attempted second‑degree murder and accomplice liability, (2) insufficiency of evidence for the child aggravated assault, (3) improper consecutive sentence for the dangerous‑child finding, and (4) erroneous admission of child‑related photographs.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Felix) | Held |
|---|---|---|---|
| 1. Legality of attempted second‑degree murder instruction | Instruction is correct; State presented theory of intent to kill and argued premeditation | Instruction improperly allowed conviction if defendant knew conduct would cause "death or serious physical injury," lowering mens rea | Vacated attempted second‑degree murder convictions; instruction fundamental error and prejudicial under these facts (remand for new trial) |
| 2. Accomplice liability instruction | Instruction tracked statute and supports convicting non‑shooter if he intended to promote offense | Instruction could permit conviction where Felix lacked requisite intent for aggravated assault (i.e., only shooter had intent) | Affirmed; instruction required defendant have intent to promote or facilitate the offense, so no error |
| 3. Sufficiency and dangerous‑child finding for J.V. aggravated assault | Evidence shows shots aimed at chest/stomach area, presence of child shown; qualifies as dangerous crime against children | No evidence child was targeted; victim too young to have apprehension; insufficient evidence and statute inapplicable | Affirmed: evidence supported that the child was placed in reasonable apprehension and that offense qualified as dangerous crime against children |
| 4. Admission of photographs (crib, stuffed gorilla) | Photos relevant to bullet trajectory, lethality, and presence of a child; probative value outweighed prejudice | Photographs were inflammatory and not essential to whether Felix shot at the house | Affirmed: trial court did proper Rule 401/403 balancing; admission not an abuse of discretion |
Key Cases Cited
- State v. Ontiveros, 206 Ariz. 539 (App. 2003) (attempted second‑degree murder requires intent to kill or knowledge that conduct will cause death)
- State v. Dickinson, 233 Ariz. 527 (App. 2013) (erroneous instruction including "serious physical injury" is fundamental error; prejudice inquiry required)
- State v. Henderson, 210 Ariz. 561 (2005) (standard for fundamental error review; defendant must show prejudice)
- State v. Jones, 235 Ariz. 501 (2014) (A.R.S. § 13‑705 dangerous‑child provision takes precedence over double‑punishment statute)
- State v. Bible, 175 Ariz. 549 (1993) (standard for sufficiency review; circumstantial evidence can prove "reasonable apprehension")
- State v. Ellison, 213 Ariz. 116 (2006) (accomplice instruction proper when it requires specific intent to promote or facilitate the offense)