State of Arizona v. Larry James Fournier

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 26, 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
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
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Opinion of the Court
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 lesser-
included 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,
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STATE v. FOURNIER
Opinion of the Court
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
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Opinion of the Court
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.
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Opinion of the Court
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).
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Opinion of the Court
¶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
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STATE v. FOURNIER
Opinion of the Court
also argues, for the first time on appeal, that a transcribed third-party
interview admitted at the voluntariness hearing was hearsay 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.
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STATE v. FOURNIER
Opinion of the Court
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 hearsay 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
9
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Opinion of the Court
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.
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Opinion of the Court
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
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
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
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.
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