State v. Caballero, 2020 Ariz. App. Unpub. LEXIS 291 (AZ Ct. App. Div. 2 2020)

State v. Caballero, 2020 Ariz. App. Unpub. LEXIS 291 (AZ Ct. App. Div. 2 2020)

Court of Appeals of Arizona, Division Two

March 18, 2020, Filed

LOSD Brief:


The Defendant was driving his SUV when the Victim, apparently distracted on his phone, ran into the street in front of the vehicle.  The Defendant braked, just avoiding the Victim, and yelled at the Victim angrily.

This escalated into a general verbal confrontation between the two men, as small things so often do.  The Defendant then used his vehicle to “pin” the Victim against some bushes.  The Victim responded by spraying the Defendant with pepper spray, then the Victim ran round the corner and hid.  The Defendant responded after about a five second delay by retrieving a revolver and firing twice.


For having fired those two gunshots the Defendant would be charged with aggravated assault with a deadly weapon and unlawful discharge of a firearm within city limits.  Only the aggravated assault charge is relevant to this appeal. Typically, aggravated assault with a firearm is a felony good for 10 to 20 years in prison if convicted.

At trial the Defendant raised the legal defense of self-defense. As part of that legal defense the Defendant sought to introduce into evidence a surveillance video that captured the Victim in a confrontation two years prior to these events.  In that confrontation the Victim got into a physical confrontation with a woman at a gas station, with the two striking each other over some dispute over an air hose station.

The Defendant argued that the video showed that the Victim was prone to use disproportionate force in response to even modest provocation, and that the video was therefore useful to impeach the Victim’s credibility about his confrontation with the Defendant.  He also argued that the video was evidence suggesting that it was likely the Victim, rather than the Defendant who was the initial aggressor in their confrontation.

The trial judge refused to admit the video, on the grounds that the two-years-earlier event was two far removed from the current event in time to be relevant to this case.

The jury would convict the Defendant as charged. 


The Defendant appeals his conviction on the grounds that the trial court committed reversible error when it excluded the surveillance video of the Victim’s prior confrontation from evidence.

The appellate court notes that the general rule is that evidence of other crimes, wrongs, or acts is not admissible in a trial for an unrelated event.  This rule is generally intended to protect criminal defendants from being found guilty of a current charge based on some alleged misconduct they might have committed in some unrelated event.  It can also apply, however, to evidence about purported misconduct by other persons, in this case the Victim.

There is an exception to this general rule prohibiting evidence of prior bad acts, however, and that exception arises when the legal defense of self-defense is raised.

One of the elements of self-defense is Innocence, meaning that the person claiming self-defense must not have been the initial aggressor in the confrontation.  This makes the question of who was the initial aggressor highly relevant, indeed even key, to the self-defense claim.  As a result, if there is evidence that shows the Victim has a propensity for violence, and therefore suggests it is more likely the Victim rather than the Defendant who was the initial aggressor, then the evidence of the Victim’s propensity for violence may be admissible.

Here, however, the courts distinguish between two types of such evidence of propensity for violence.

The first bucket of such evidence is general character or reputational evidence—the person has a general reputation in the community for violence

The second bucket of such evidence is evidence of specific bad acts—there is a police report or surveillance video or something other evidence of the person committing a specific act of violence. This is the type of evidence in question in this case.

So, general reputational evidence, on the one hand, and evidence of specific bad acts, on the other hand.

Having defined these two buckets, the law then treats each of them differently in terms of their admissibility.

Evidence in the general reputational bucket may be admissible in court to show it was the Victim, rather than the Defendant, who was the initial aggressor, and this is permitted even if the Defendant did not possess that knowledge at the time.  So, you’re attacked by a stranger, you defend yourself, you later discover evidence previously unknown to you that the person who attacked you has a reputation for violence, you can get that reputational evidence into court, despite you not having known it at the time.

Evidence of specific bad acts, however, is treated differently—this evidence is admissible only if you can prove that you possessed that knowledge at the time you acted in self-defense.  If you weren’t aware of the attacker’s specific bad acts at the time you defended yourself against him, but only learn of those specific bad acts later, you cannot have that evidence of specific bad acts admitted at trial.

In this case the evidence sought to be admitted is surveillance video of a specific bad act of the Victim—his physical confrontation with the woman at the gas station—and the Defendant is not able to prove he possessed knowledge of that event at the time of his own confrontation with the Defendant.

The surveillance video evidence was therefore properly excluded by the trial judge.


The Defendant’s conviction for aggravated assault with a firearm is confirmed.


This decision makes numerous references to another important Arizona appellate court decision in the case of Harold Fish.  Click here to read the Fish decision:  State v. Fish 213 P.3d 258 (AZ Ct. App. 2009). The Fish case was quite high profile in its day, for a number of reasons.  First, were the unusual facts of the case. Second, was the nature and outcome of the legal battle that followed.

Fish was walking on a narrow trail through a forest when he was charged by a pack of dogs.  Fearing he was to be attacked, he drew his pistol (a 10mm Kimber) and fired a round into the dirt.  This shot outraged the dog’s owner, the Victim in this case, who aggressively charged Fish.  Fearing serious injury at the apparently maddened and much larger Victim, Fish shot the unarmed Victim once in the chest, killing him.

Fish would argue self-defense at trial and attempt to get admitted at trial evidence of the Victim’s violent character. That evidence was excluded by the trial court, and Fish was convicted of second-degree murder.

After spending years in prison, Fish’s appeal was heard, and the appellate court did a very detailed and comprehensive review of the laws governing the admissibility of character evidence in a self-defense trial.  Ultimately the appellate court would reverse Fish’ conviction, and Fish was released from prison.

Unfortunately, it’s my recollection that Fish would die soon after of cancer, so in effect he spent several of the last years of his life in prison on a wrongful conviction.

In any case, for those of you interested in a detailed analysis of when character evidence may be admissible in a self-defense case, the Fish makes a good read. 

No. 2 CA-CR 2019-0008

2020 Ariz. App. Unpub. LEXIS 291



Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel

By Amy M. Thorson, Assistant Attorney General, Tucson, Counsel for Appellee,

Joel Feinman, Pima County Public Defender, By Sarah L. Mayhew, Assistant Public Defender, Tucson, Counsel for Appellant


Decision of the Court


Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred.

STARING, Presiding Judge:

Daniel Caballero appeals from his convictions and sentences for aggravated assault with a deadly weapon and unlawful discharge of a firearm within city limits. Caballero challenges the aggravated assault conviction, arguing the trial court improperly excluded certain evidence. [1] We affirm.

Factual and Procedural Background

We view the facts in the light most favorable to sustaining the jury’s verdict. See State v. Kellywood, 246 Ariz. 45, ¶ 2 (App. 2018). In 2017, Caballero was driving when the victim, who was on the phone, [2] ran in front of Caballero’s SUV. Caballero braked, narrowly avoided hitting the victim, and repeatedly yelled, “Do you want to get hit?”

The two exchanged words, and Caballero got out of his SUV and “start[ed] coming toward” the victim. When he was approximately forty or fifty feet away, Caballero turned and walked back toward his SUV. Caballero got back into his vehicle, and then reversed “at least 150 or more feet” and one of his rear tires came up on the sidewalk, “pinn[ing]” the victim between the SUV and some adjacent bushes. As a result, the victim was near Caballero’s passenger door. He sprayed mace in Caballero’s face through the open passenger window, and then ran away and hid around a corner. Approximately five seconds later, Caballero fired his revolver twice. At some point thereafter, Caballero drove away.

After a jury trial, Caballero was convicted as described above and was sentenced to concurrent prison terms, the longest of which is five years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).


On appeal, Caballero argues the trial court abused its discretion and denied him his right to present a complete defense by precluding evidence that would have impeached the victim’s credibility. “We review a trial court’s exclusion of evidence for an abuse of discretion, and we review de novo the interpretation of the Rules of Evidence.” Statev. Romero, 239 Ariz. 6, ¶ 11 (2016).

Before trial, Caballero sought to admit a police report regarding a 2015 altercation between the victim and a motorist at a gas station and a surveillance video that captured that altercation. According to the police report in the 2015 incident, the victim called 9-1-1 to report that he had been struck in the face by a woman at a gas station. He told the responding officer that when he had pulled his car up to the air compressor, a woman was already using it and “wasn’t being considerate.” He said that when the woman returned the hose to the dispenser, he grabbed it, and she struck him in the face with a closed fist. He then swung at the woman and hit something, but he was not sure if he had struck her. The victim also said the woman kicked his driver’s-side door. The officer did not see any marks or redness on his face, but did observe a faint shoeprint on his car door.

The 2015 surveillance video captured the following: five minutes after the victim parked his car near the air compressor, the woman returned the air hose to the dispenser and, as the hose was retracting, he grabbed it from her hands and walked with it towards his car; the woman then stuck out her foot and tripped him; he stumbled forward, then turned around and shoved the woman into her vehicle. Both the victim and the woman then swung at each other and missed, and the woman kicked his driver’s-side door. Although the video lacks audio, it appears to show the two exchanging words after attempting to strike each other. The video then shows the victim standing in front of the woman’s vehicle near the license plate while apparently making a phone call.

Caballero moved to admit the 2015 police report and video pursuant to Rules 404(b) and 608(b), Ariz. R. Evid., and State v. Fish, 222 Ariz. 109 (App. 2009). He maintained the video showed the victim’s motive and intent to use a disproportionate amount of force in response to insufficient provocation, his motive and intent to lie to police about what happened during his altercation with Caballero, and served to impeach his credibility. Caballero argued the evidence of the victim’s prior acts was relevant to corroborating his version of events. He also asserted that because the victim’s “aggressiveness and lack of credibility are vitally important to support” his justification defense at trial, he should be permitted to introduce the other-act evidence in order to present a complete defense and to confront and cross-examine the victim.

The trial court disagreed and explained that Fish, 222 Ariz. 109, on which Caballero relied, was distinguishable because there, evidence of the victim’s prior acts was admitted “in order to substantiate or help prove the defense’s position not only on self-defense but also on how specifically the victim [in that case] was approaching at that point,” because the only living witness was the defendant and the facts of the prior acts and the current event were “very similar.” The court concluded the 2015 incident involving the victim in this case was “a distinct event” occurring at least “two years earlier,” ruled that Rule 404(b) applied, and precluded the evidence.

On appeal, Caballero maintains evidence related to the 2015 incident should have been admitted because evidence of the victim’s “false allegations that he was not the initial aggressor” during that incident was relevant to show his motive and intent to lie to police in this case and to impeach his credibility. Specifically, he contends that the trial court erred in finding the 2015 incident was distinct from the present case and argues that “[t]his case falls squarely within the parameters of Fish.” Caballero also appears to suggest the court’s preclusion of the evidence violated his constitutional rights to present a complete defense and confront and cross-examine the victim. While, as noted, we review a court’s ruling on the admission of other-act evidence for an abuse of discretion, State v. Hulsey, 243 Ariz. 367, ¶ 38 (2018), we review constitutional issues de novo, State v.Moody, 208 Ariz. 424, ¶ 62 (2004).

Rule 404(b) provides that, except for sexual-misconduct cases, “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity” with that character, but “may, however, be admissible for other purposes, such as proof of motive, opportunity, [or] intent.” This rule applies to other acts of alleged victims. Fish, 222 Ariz. 109, ¶ 42. Before admitting evidence of other acts, the court must find by clear and convincing proof that the person committed the act. State v. Anthony, 218 Ariz. 439, ¶ 33 (2008) (citing Statev. Terrazas, 189 Ariz. 580, 582 (1997)). Further, “a proper purpose must be shown under Rule 404(b), it must be relevant under Rule 402, [Ariz. R. Evid.,] the probative value of the evidence must not be substantially outweighed by its potential prejudicial effect under Rule 403, [Ariz. R. Evid.,] and the court must give a proper limiting instruction if requested under Rule 105[, Ariz. R. Evid.].” State v. Acuna Valenzuela, 245 Ariz. 197, 12 (2018); see also Fish, 222 Ariz. 109, ¶ 43; State v. Coghill, 216 Ariz. 578, 13 (App. 2007).

When a defendant raises a justification defense, as Caballero did here, he is permitted to introduce evidence that the victim was the initial aggressor, but “he may do so only in limited ways.” State v. Connor, 215 Ariz. 553, ¶ 13 (App. 2007). A defendant may offer reputation or opinion evidence that the victim has a character trait of violence or aggressiveness. See Ariz. R. Evid. 404(a)(2) (permitting evidence of a pertinent character trait of the victim offered by an accused); Ariz. R. Evid. 405(a) (where evidence of a character trait is admissible such evidence is limited on direct examination to reputation or opinion evidence). And, a defendant may offer evidence of other acts of violence by the victim, but “only if the defendant knew of them . . . or if they are directed toward third persons relating to or growing out of the same transaction, or so proximate in time and place and circumstances as would legitimately reflect upon the conduct or motives of the parties at the time of the affray.” Connor, 215 Ariz. 553, ¶ 13 (quoting State v. Zamora, 140 Ariz. 338, 341 (App. 1984)).

Further, “a defendant may not introduce evidence of specific acts unknown to the defendant at the time of the alleged crime to show that the victim was the initial aggressor.” Fish, 222 Ariz. 109, ¶ 35; see also United States v. Gregg, 451 F.3d 930, 935 (8th Cir. 2006) (“Evidence of specific instances of a victim’s prior violent conduct for purposes of proving a defendant’s state of mind . . . is only admissible to the extent a defendant establishes knowledge of such prior violent conduct at the time of the conduct underlying the offense charged.”).

Here, although the trial court did not expressly determine whether the victim’s acts in the 2015 incident were proven by clear and convincing evidence, the state did not dispute that the victim committed the acts depicted in the video. The state did, however, contend “it’s not absolutely clear” that the victim had lied to the police about what happened in the video.

In addition, the trial court did not specifically note whether the evidence of the victim’s 2015 acts was offered for a proper purpose under Rule 404(b), but concluded Rule “404(b) applies and . . . this is to be precluded at trial.” However, while the evidence was ostensibly offered under Rule 404(b) to show the victim’s motive and intent to use a disproportionate amount of force in response to insufficient provocation, “this stated purpose necessarily relates to [Caballero]’s state of mind and as such, to be admissible [Caballero] must have known of the prior specific conduct.” See Fish, 222 Ariz. 109, ¶ 45. Because Caballero was not aware of the 2015 incident at the time of the altercation with the victim here, evidence of those specific acts was not admissible for that purpose. And although Caballero asserts that the evidence should have been admitted to show motive and intent to lie to police, that purpose necessarily relates to attacking the victim’s character for truthfulness. See id. Therefore, we address that argument in our discussion of Rule 608(b).

Further, we disagree with Caballero’s assertion that his case “falls squarely within the parameters of Fish.” In Fish, this court concluded that because of the “nature of the record,” “evidence of specific acts of violence by the Victim when confronted about his dogs [was] relevant to corroborate [Fish’s] description of the events leading up to the shooting,” where Fish claimed he had shot the victim in self-defense. Id. ¶¶ 41, 49, 54. There, Fish sought to admit evidence of the victim’s other acts of violence which all involved the victim becoming “irrationally aggressive and threatening . . . [with] a wild look in his eyes” when confronted about his dogs. Id. ¶ 9. The facts of those acts were “very similar” to Fish’s description of the victim racing towards him “with his eyes crossed and looking crazy and enraged,” and “swinging his arms” after Fish had been chased by the victim’s dogs and fired his gun into the ground to disperse the dogs. Id. ¶¶ 2, 3, 49. Further, there were no other witnesses to the shooting. Id. ¶ 49. Based on that record, the victim’s other acts “were highly relevant to the credibility of the self-defense claim.” Id. The Fish court also made clear that it was addressing a unique set of facts and that its conclusion did “not mean that in any self-defense claim prior acts of a victim unknown to the defendant at the time of the alleged crime are always admissible to corroborate the defendant’s claim.” Id.

In this instance, the similarity between the incidents present in Fish does not exist. Additionally, unlike in Fish, there was another witness to the shooting, who testified that she had seen Caballero yell at the victim and quickly back his SUV towards him. She also testified that she had seen the victim mace Caballero and Caballero exit his SUV and aim and fire at the victim, who was running away. Moreover, to the extent the 2015 incident could be viewed as having some relevance in terms of corroborating Caballero’s version of events, the trial court could have reasonably concluded that any such relevance was substantially outweighed by the danger of unfair prejudice. See Ariz. R. Evid. 403. On this record, the court did not abuse its discretion in precluding evidence of the 2015 incident. See Hulsey, 243 Ariz. 367, ¶ 38.

To the extent Caballero asserts the preclusion of this evidence violated his constitutional rights to present a complete defense and to confront and cross-examine his accuser, we disagree. The right to present evidence in support of a complete defense is not absolute; rather, the “right to present evidence in one’s defense is limited to evidence which is relevant and not unduly prejudicial.” State v. Oliver, 158 Ariz. 22, 30 (1988). Because the trial court properly excluded the evidence of the victim’s prior acts under Rule 404(b), we cannot say Caballero’s constitutional rights were violated. See State v. Davis, 205 Ariz. 174, ¶ 33 (App. 2002) (“[A] defendant’s constitutional rights are not violated where, as here, evidence has been properly excluded.”).

Finally, Caballero argues the other-act evidence should have been admitted under Rule 404(b) to show the victim’s motive and intent to lie to police about his interaction with Caballero and to impeach the victim pursuant to Rule 608(b). As noted, the trial court excluded the evidence pursuant to Rule 404(b); it did not address whether the evidence was admissible under Rule 608(b). Under Rule 608(b), “extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack . . . the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the witness.” Thus, under Rule 608(b), Caballero may have been permitted to inquire about the 2015 incident. But, because Rule 608(b) plainly prohibits extrinsic evidence, the police report and surveillance video were inadmissible to show the victim’s motive and intent to lie and to impeach his credibility.


For the foregoing reasons, we affirm Caballero’s convictions and sentences.


  1. Caballero does not challenge the unlawful discharge conviction on appeal.
  2. The victim was recording his phone call, and that recording captured audio of the incident.