Opinion
No. 1 CA-CR 18-0256
02-05-2019
STATE OF ARIZONA, Appellee, v. DANNY EUGENE BUTTON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Robert A. Walsh Counsel for Appellee Rideout Law PLLC, Lake Havasu By Bradlee H. Rideout, Wendy Marcus Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CR201700162
The Honorable Richard D. Lambert, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL Arizona Attorney General's Office, Phoenix
By Robert A. Walsh
Counsel for Appellee Rideout Law PLLC, Lake Havasu
By Bradlee H. Rideout, Wendy Marcus
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Lawrence F. Winthrop joined. THOMPSON, Judge:
¶1 Danny Button appeals his convictions and sentences for aggravated assault, disorderly conduct involving weapons, and endangerment. For the following reasons, we vacate the convictions and sentences for disorderly conduct involving weapons but affirm the remaining convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the verdicts. See State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). After seasonal storms and snowmelt deluged western Arizona, four outdoor enthusiasts (victims T.W., J.G., P.P., and E.M.) traveled to Burro Creek to kayak the engorged stream. When the men arrived at the Burro Creek campground, which is located on federal land and operated by the Bureau of Land Management, they checked in with the campsite host, prepared their gear, dropped their kayaks into the stream, and set off.
¶3 Less than thirty minutes into their expedition, the kayakers heard a gunshot from the right bank of the stream. As they turned toward the sound, Button emerged from the bushes, walked down the beach armed with a revolver, and aimed at T.W., who was in the lead position.
¶4 Although the stream's current was fast-flowing and turbulent at times, at that point it moved very slowly, allowing J.G. to carefully observe Button as he assumed a "shooter's position," took aim, and fired shots at T.W., moving closer to his target between each round. After the third shot, T.W. rolled his kayak to evade gunfire. When he eventually rolled upright for air, Button said, "This one's not going to miss," and fired another shot. Trying to escape, T.W. paddled furiously, but Button continued shooting until T.W. moved out of range, with the last bullet striking the water within a few feet of his kayak.
¶5 Once T.W. paddled out of sight, Button turned his attention to the remaining kayakers and ordered them, at gunpoint, to pull ashore. Feeling threatened and fearing that T.W. may have been shot, J.G, P.P., and E.M. complied.
¶6 After the men pulled their kayaks onto the bank, Button told them that they were trespassing private property. The men explained that they were simply kayaking downstream and had no intention of trespassing. They also implored Button to release them and allow them to rejoin T.W. and ascertain whether he had been shot.
¶7 Indifferent to their pleas, Button threatened to retrieve his 7-millimeter rifle and ordered the men to carry their kayaks upstream to the campsite. Frightened, the kayakers obeyed Button's orders, but once they reached the campground, they contacted the local sheriff's department and reported the incident.
¶8 After receiving their call, the sheriff deployed a search and rescue team to find T.W. The team did not locate T.W. until the following day, likely due, at least in part, to T.W.'s efforts to conceal himself until dark to avert further attack.
¶9 Meanwhile, a sergeant and deputy contacted Button at his residence and inquired about his altercation with the kayakers. According to Button, he simply had been shooting target practice when the kayakers unexpectedly crossed his path and inadvertently came under fire. Claiming that the kayakers had trespassed his private property, Button explained that he ordered them to exit the stream for their own safety, concerned downstream waterfalls posed a potential danger. Although he denied endangering the kayakers, Button acknowledged that he had shot "fairly close" to the lead kayaker and ordered at gunpoint the other three kayakers out of the stream. When asked whether the kayakers had threatened him in any manner before he began shooting, Button conceded that they had neither attempted to exit their boats nor engaged in any other threatening behavior.
¶10 After questioning Button and seizing his gun and expended shell casings, the deputy placed him under arrest. The state charged Button with one count of attempted second degree murder (count 1 - victim T.W.), four counts of aggravated assault (count 2 - victim T.W.; count 5 - victim P.P.; count 9 - victim E.M.; and count 13 - victim J.G.), four counts of disorderly conduct involving a weapon (counts, 3, 7, 11, and 15), four counts of endangerment (count 4 - victim T.W.; count 8 - victim P.P.; count 12 - victim E.M.; and count 16 - victim J.G.), and three counts of kidnapping (counts 6, 10, and 14).
¶11 At trial, the prosecutor acknowledged that in certain areas, including the site of the shooting, Burro Creek runs across private property. The prosecutor argued, however, that T.W., J.G., P.P., and E.M. did not trespass that private property because they remained on the water and never touched land before the shooting. Alternatively, even if they had trespassed, the prosecutor asserted that Button's actions were nonetheless unreasonable. Defense counsel, on the other hand, argued that Button simply engaged in target practice and did not intentionally shoot at T.W. Likewise, defense counsel asserted that Button merely held a gun in his hand while gesturing for J.G., P.P., and E.M. to exit the stream, contending he never pointed the gun at the men in the process. Regardless, defense counsel also asserted that Button's conduct was justified as reasonably necessary to defend his premises against trespass.
¶12 Addressing Button's trespass claim, the victims testified that they never saw a "no trespass" sign or fencing before the shooting. Consistent with these accounts, a sergeant and deputy testified that as part of their investigation, they examined the "no trespass" sign hung on a pipeline at least 8 feet above the stream and determined it was "fairly faded" and "really difficult to read."
Although Button implies that at least one kayaker saw a "no trespass" sign before crossing onto private property, the uncontroverted evidence reflects that the kayaker only saw the sign as he walked his kayak back to the campground.
¶13 The campsite host, Sherrie Quinton, testified that on the day in question, shortly after she spoke with the victims, she spotted Button driving his ATV toward the campsite. Although she walked toward Button to extend him a greeting, he quickly turned his ATV around and headed back toward his house. About ten minutes after Button hastily drove away, Quinton heard five shots. Shortly thereafter, she saw J.G., P.P., and E.M. return to the campsite appearing "frightened beyond belief."
¶14 Following a midtrial hearing on other-act evidence, two Colorado men, J.W. and M.M., testified that approximately ten days before the underlying events, they traveled to Burro Creek to raft the stream. After they arrived at the campground, prepared their gear, and were "just about to push off," Button drove up in a white pickup truck that squealed to an abrupt halt next to them. When Button asked what the men were doing, they answered that they were going to paddle the stream. In response, Button told the men that the stream was located on his private property and they were not permitted to trespass. Although the men stated that they would stay on the water and not trespass any private property, Button told them that they would likely be shot if they proceeded downstream. Feeling threatened, the men pulled their raft out of the water and reported the incident to the campsite host.
¶15 Finally, taking the stand in his own defense, Button testified that on the day at issue, he was conducting target practice on the bank of the stream when a kayaker crossed in front of his path. Surprised to see kayakers trespassing his property, Button claimed he stopped firing and yelled for them to disembark and come ashore. Contrary to his admissions during his police interview, Button denied pointing his gun at the kayakers, claiming he held it pointed down, and explained that he ordered the men out of the stream for their own safety because waterfalls and large rocks were downstream.
¶16 After a five-day trial, a jury failed to reach verdicts on the counts of attempted second-degree murder and kidnapping but found Button guilty of the remaining counts. The superior court sentenced Button to an aggregate term of 22.5 years' imprisonment. Button timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2019), 13-4031 (2019), and -4033(A)(1) (2019).
We cite to the current version of any statute unless the statute was amended after the pertinent events and such amendment would affect the result of this appeal.
DISCUSSION
I. Argument and Jury Instructions Regarding Public Access to Private Waterways
¶17 Button asserts that Arizona does not recognize a public easement in private waterways and therefore: (1) the prosecutor engaged in misconduct by arguing that the victims lawfully kayaked Burro Creek across private property, and (2) the superior court erroneously instructed the jury by failing to state that there is no recognized right to float in Arizona.
¶18 Before trial, the state moved for a ruling that the victims lawfully floated down Burro Creek and did not trespass private property. See A.R.S. § 45-141(A) (2019) ("The waters of all sources, flowing in streams, canyons, ravines or other natural channels . . . belong to the public and are subject to appropriation and beneficial use as provided in this chapter."). The state argued that Burro Creek, and all flowing water sources, belong to the public, even where they cross onto private property. After holding a hearing on the motion, the superior court ruled that the victims did not commit trespass, but "specifically" withheld any "ruling that there is a right to float" in Arizona.
¶19 By way of special action, Button challenged the superior court's no-trespass ruling. In a memorandum decision, we vacated the superior court's ruling, and in so doing, noted that "no Arizona authority address[es] the right to float[.]"
¶20 On the first day of trial, before jury selection began, the parties debated the extent to which this court's special action decision constrained trial argument. The prosecutor expressed his intent to argue that flowing waters belong to the public and therefore accessing such waters cannot constitute a trespass. In response, defense counsel lodged a standing objection, contending the prosecutor's proposed argument misstated the law and amounted to prosecutorial misconduct. After hearing from both sides, the superior court informed the parties that it would present the jury with final instructions on trespass, defense of premises, and flowing water (as requested by the state and predicated on A.R.S. § 45-141(A)).
¶21 Notwithstanding this pretrial ruling, however, the superior court provided only the following final jury instruction on water access, which was substantially lifted from this court's memorandum decision:
There is no Arizona authority addressing the right to float and no Arizona court has expressed an opinion as to that issue.The court also provided defense counsel's requested instructions on defense of premises and trespass:
Justification in Defense of Premises
A defendant in lawful possession or control of the premises is justified in threatening to use deadly physical force, in using physical force, in attempting to use physical force, or in threatening to use physical force in defense of premises if a reasonable person in the situation would have believed it immediately necessary to prevent or terminate the commission or attempted commission of a criminal trespass by another person in or upon the premises. The force used
may not be greater than reasonably necessary to prevent the attempted criminal trespass.
An actual criminal trespass is not necessary to justify the use of physical force in defense of premises. A defendant is justified in defending premises if the defendant reasonably believed that a criminal trespass was being committed or attempted. You must measure the defendant's belief against what a reasonable person in the situation would have believed.
The defense ends when the attempted criminal trespass ends.
The State has the burden of proving beyond a reasonable doubt that the defendant did not act with such justification. If the State fails to carry this burden, then you must find the defendant not guilty of the charge.
Definition of Premises
Any real property and any structure, movable or immovable, permanent or temporary, adapted for both human residence and lodging whether occupied or not.
Definition of Criminal Trespass
A person commits criminal trespass by knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry.
¶22 Although Button petitions this court to expressly hold that the public has no right to access flowing waters on private property, we need not decide that issue to determine whether the prosecutor engaged in misconduct and the court adequately instructed the jurors. That is, even assuming that the kayakers trespassed private property as they traversed Burro Creek, Button's conduct was not justified as a matter of law.
¶23 Consistent with the superior court's final jury instructions, and as relevant here, a person commits criminal trespass in the third degree by knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry. A.R.S. § 13-1502(A)(1) (2019). In response to such an offense, a person lawfully in possession or control of the real property may threaten to use deadly physical force or threaten or use physical force "when and to the extent that a reasonable person would believe it immediately necessary to prevent or terminate" the criminal trespass. A.R.S. § 13-407(A) (2019) (emphasis added). The defense of premises justification is limited, however, and a person may use deadly force "only in the defense of himself or third persons[.]" A.R.S. § 13-407(B). As defined by statute, "deadly physical force" is "force that is used with the purpose of causing death or serious physical injury or in the manner of its use or intended use is capable of creating a substantial risk of causing death or serious physical injury." A.R.S. § 13-105(14) (2019).
¶24 Although Button testified that he accidentally and inadvertently shot at T.W., defense counsel also argued that even if intentional, such conduct was lawful. Assuming Button intentionally shot at T.W. for purposes of this analysis, such conduct constituted the use of deadly physical force. Because the use of deadly physical force is justified only in the defense of human life, not in the defense of property alone, and the undisputed evidence reflects that the kayakers presented no threat of harm to Button or anyone else, Button's use of deadly physical force against T.W. was unreasonable as a matter of law.
¶25 Turning to Button's use of a gun to compel J.G., P.P., and E.M. to disembark and come ashore, no reasonable person could find that it was immediately necessary to threaten the use of deadly physical force under the circumstances of this case. That is, it is uncontroverted that the kayakers presented no threat to Button or his property. Indeed, to the contrary, the kayakers were attempting to cross and exit the property. By Button's own admission, he never felt threatened by the kayakers' presence and simply wanted to assert his alleged right to exclude them from the stream. Even assuming Button had a right to exclude, however, it was unreasonable, as a matter of law, for him to order the kayakers out of the stream at gunpoint, without first employing less threatening measures. Therefore, given the specific facts of this case, the prosecutor's argument that the kayakers did not trespass Button's property, even if erroneous, was necessarily harmless because their alleged trespass did not justify Button's threatened use of deadly force as a matter of law. For the same reasons, the superior court's final instruction on public access to private waters, even if inadequate, was equally harmless. In other words, no reasonable jury could have found that in response to the alleged trespass, Button was justified in threatening deadly physical force.
¶26 In its answering brief, the state asks this court to vacate the convictions and sentences for disorderly conduct involving weapons, positing that those counts are lesser-included offenses to the counts of aggravated assault. As charged in this case, a person commits: (1) misconduct with weapons when with the intent to disturb the peace or quiet, he recklessly handles, displays or discharges a deadly weapon, A.R.S. § 13-2904(A)(6) (2019); and (2) aggravated assault by using a deadly weapon to intentionally place another person in reasonable apprehension of imminent physical injury, A.R.S. §§ 13-1203(A) (2019), -1204(A)(2) (2019). Because a person "cannot place a person in reasonable apprehension of imminent physical danger without in fact also disturbing her peace, all elements of disorderly conduct by reckless display of a firearm are in fact elements of aggravated assault." State v. Miranda, 200 Ariz. 67, 68 ¶ 3 (2001). Therefore, we vacate the convictions and sentences for counts 3, 7, 11 and 15.
II. Jury Instructions Regarding Verdicts and Aggravated Assault
¶27 Button argues the superior court improperly instructed the jurors, effectively foreclosing the possibility of jury nullification. Specifically, he challenges the court's instructions that the jurors had to render guilty verdicts if firmly convinced of Button's guilt and could not consider, in reaching their verdicts, any possible punishments the court may impose. In addition, Button contends the court's instruction on aggravated assault was inadequate because it failed to make clear that the jurors had to find Button intended both to cause the kayakers fear and to cause them fear of imminent physical injury.
¶28 As noted by the state, Button requested the challenged jury instructions ostensibly related to jury nullification: (1) "If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty;" and (2) "You must not consider the possible punishment when deciding on guilt; punishment is left to the judge."
¶29 The invited error doctrine "precludes a party who causes or initiates an error from profiting from the error on appeal." State v. Lucero, 223 Ariz. 129, 135, ¶ 17 (App. 2009). In other words, "[i]f the error is invited, the offending party has no recourse on appeal even under the exacting standard of fundamental error." Id.
¶30 In this case, because the record clearly reflects that Button requested the challenged jury instructions, he is "barred" from claiming error on appeal. Id. at 136-38, ¶¶ 20, 31. Moreover, apart from invited error, "jury nullification is not the legal 'right' of either the defendant or the jury," and a court need not instruct jurors that they "have the power to ignore the law in their verdicts[.]" State v. Paredes-Solano, 223 Ariz. 284, 292-93, ¶ 26 (App. 2009) (internal quotation omitted).
¶31 With respect to the aggravated assault instructions, the record reflects that Button requested instructions that encompassed the final jury instructions, although, at the state's request, the superior court redacted language not implicated by the charged conduct. Because Button did not object to this modification, we review his claim only for fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). We review de novo, however, whether the given instructions accurately state the law. State v. Fierro, 220 Ariz. 337, 338, ¶ 4 (App. 2008).
¶32 To assess whether instructions properly reflect the law, we review them in their entirety and will not reverse a jury verdict based on an erroneous instruction unless the instructions, taken as a whole, could reasonably mislead a jury. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75 (2000); State v. Gallegos, 178 Ariz. 1, 10 (1994). If a jury instruction is substantially free from error, the defendant generally suffers no prejudice from its wording. Gallegos, 178 Ariz. at 10.
¶33 As charged in this case, a person commits aggravated assault by intentionally placing another person in reasonable apprehension of imminent physical injury while using a deadly weapon. A.R.S. §§ 13-1203, -1204. The superior court instructed the jury that:
The crime of assault requires proof that the defendant intentionally put another person in reasonable apprehension of imminent physical injury.
The crime of aggravated assault requires proof of the following: the defendant committed an assault, and the assault was aggravated by the defendant's use of a deadly weapon or dangerous instrument.
¶34 Viewed in their entirety, the superior court's aggravated assault instructions, which identified all the elements of aggravated assault and tracked the relevant statutes, adequately stated the law. That is, contrary to Button's contention, the given instructions make clear that an intent to cause reasonable apprehension of imminent physical injury is an essential element of the offense. Moreover, we note that the given instructions did not prevent Button from arguing that he intended to cause the kayakers fear but did not intend to cause them fear of imminent physical injury. Therefore, the superior court did not err, much less commit fundamental error, by providing the given instructions.
III. Alleged Duplicitous Charges
¶35 Although minimally briefed, Button asserts the aggravated assault charges relating to J.G., P.P., and E.M. were duplicitous because the underlying conduct was not identified. In other words, Button argues the charges failed to specify whether he committed the aggravated assaults against J.G., P.P., and E.M. when he shot at T.W. or when he ordered them ashore at gunpoint.
¶36 "A duplicitous indictment charges two or more distinct offenses in a single count." State v. Waller, 235 Ariz. 479, 488, ¶ 31 (App. 2014) (internal quotation omitted). "For an indictment to be duplicitous, the error must be apparent from the language of the charging document itself; it does not depend on the evidence admitted at trial." Id. at 489, ¶ 31.
¶37 As reflected in the indictment, the state alleged that Button "committed aggravated assault with a deadly weapon or dangerous instrument" against each victim. In addition, each aggravated assault count specified which statutory subsection of the assault statute was implicated, A.R.S. § 13-1203(A)(2) (intentionally placing another person in reasonable apprehension of imminent physical injury). Because the indictment does not on its face charge multiple crimes in a single count, it is not duplicitous.
¶38 Even when an indictment is not duplicitous, however, trial evidence may render a charge duplicitous. Waller, 235 Ariz. at 489, ¶ 33. In such a circumstance, "the appropriate remedy is to require the state to elect the act which it alleges constitutes the crime, or instruct the jury that they must agree unanimously on a specific act that constitutes the crime before the defendant can be found guilty." Id. (internal quotation omitted).
¶39 "Because a defendant has the right to a unanimous jury verdict in a criminal case, a violation of that right constitutes fundamental error." Id. at 489, ¶ 34 (internal quotation omitted). To constitute reversible error, the defendant must demonstrate that he was prejudiced by the duplicity "when considered in conjunction with all the evidence in the case." Id. (internal quotation omitted).
¶40 At trial, the state introduced evidence that Button repeatedly shot at T.W. and forced J.G., P.P., and E.M. ashore at gunpoint. During closing argument, the prosecutor differentiated between Button's criminal conduct against T.W. (taking careful aim and shooting), and his illegal acts against the other kayakers (ordering them out of the water at gunpoint and directly pointing a gun at each of them individually). Because the prosecutor clearly identified the conduct that he alleged constituted the offenses, there is no uncertainty as to which acts served as the predicate for the convictions, and therefore no basis to conclude the jury's determination may have been other than unanimous. See State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989) (explaining appellate courts may consider closing arguments "when assessing the adequacy of jury instructions").
IV. Admission of Other-Act Evidence
¶41 Button contends the superior court improperly admitted other-act evidence offered by the state. Specifically, he argues that the other-act evidence was neither proven by clear and convincing evidence nor offered for a proper purpose, and that its probative value was substantially outweighed by a danger of unfair prejudice.
¶42 Before trial, the state moved to introduce evidence that Button threatened J.W. and M.M. on January 22, 2017, approximately ten days before the underlying events. In response, Button moved to preclude the other-act evidence.
The state also moved to introduce other acts involving Button allegedly harassing various campers at the Burro Creek campground. Because that evidence was not admitted at trial, we do not consider it.
¶43 At an evidentiary hearing held the third day of trial, M.M. testified that a slender man wearing a white shirt and jeans approached him and J.W. when they were about to raft Burro Creek. The man asked what they were doing, and when they responded that they were embarking on a rafting trip, the man told them that they would trespass his private property and likely be shot. Although M.M. expressed confidence in his in-court identification of Button as the man who had threatened him, he admitted that he had seen Button's picture when he researched the underlying shooting on the internet. Consistent with M.M.'s testimony, J.W. also testified that a man accosted them as they were about to start rafting Burro Creek and threatened that they would be shot if they crossed onto his private property. Like M.M., J.W. expressed certainty when he identified Button in court, but also admitted that he had seen Button's picture while looking up articles about the underlying shooting.
¶44 In addition, Quinton testified that she met with J.W. and M.M. before they dropped their raft and again a short time later when the men reported that another man had warned them that they may be shot if they traversed the stream. Because Button was known to have made similar threats to "several people," Quinton told J.W. and M.M. that Button was probably the man who had threatened them. To further corroborate J.W. and M.M.'s accounts, the state also called Button's wife, who admitted that Button had told her about an incident on January 22, 2017, when he had warned two boaters that Burro Creek was on private property.
¶45 Finding that J.W. and M.M. had each expressed sufficient certainty with their in-court identifications, the superior court found that the state had proven the other act by clear and convincing evidence. In addition, the court found that the other-act evidence was offered to prove a lack of mistake and that its probative value outweighed any prejudicial effect. In its final instructions to the jury, the court provided a limiting instruction for the other-act evidence.
¶46 We review the admission of other-act evidence for an abuse of discretion. State v. Yonkman, 233 Ariz. 369, 373, ¶ 10 (App. 2013). Applying this standard of review, "we uphold a decision if there is any reasonable evidence in the record to sustain it." State v. Butler, 230 Ariz. 465, 472, ¶ 28 (App. 2012) (internal quotation omitted).
¶47 Arizona Rules of Evidence (Rule) 404 governs the admission of character and "other act" evidence. Rule 404(b) prohibits evidence of other crimes, wrongs or acts to prove a person's character to act in a certain way, but allows such evidence for non-propensity purposes, such as showing "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Before admitting other-act evidence, a superior court must find: (1) there is clear and convincing evidence the defendant committed the other act; (2) the evidence is relevant under Rule 402, (3) the evidence is offered for a proper purpose under Rule 404(b), and (4) the probative value of the evidence is not substantially outweighed by the potential for unfair prejudice under Rule 403. State v. Terrazas, 189 Ariz. 580, 584 (1997); State v. Mott, 187 Ariz. 536, 545 (1997). Upon admission, and if requested, a superior court must provide an appropriate limiting instruction under Rule 105. Mott, 187 Ariz. at 545.
¶48 First, Button contends the state failed to prove by clear and convincing evidence that he committed the other act. Clear and convincing evidence is "proof both as to the commission of another crime and its commission by the defendant . . . by substantial evidence sufficient to take the case to a jury." Terrazas, 189 Ariz. at 582 (internal quotation omitted). Substantial evidence "is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. West, 226 Ariz. 559, 562, ¶ 16 (2011) (internal quotation omitted). Whether the state has put forward sufficient evidence to meet the clear and convincing standard is an ad hoc, factual inquiry. See State v. Renforth, 155 Ariz. 385, 386-88 (App. 1987).
¶49 Applying this framework to these facts, the state met its burden of proof. Although J.W. and M.M. acknowledged that they had researched the underlying incident and seen Button's picture as a result, each identified Button in court as the man that had accosted them, with J.W. in particular stating that he was "quite certain" about his identification. As corroborating evidence, Quentin testified that J.W. and M.M. described their encounter with Button immediately after it occurred, and she recognized their description as consistent with that of other campers who had reported being threatened by Button. Moreover, Button's wife testified that Button had admitted "warning" rafters not to traverse the stream on the date alleged. Given the certainty of J.W. and M.M.'s identifications and the corroborating evidence, the state proved by clear and convincing evidence that Button committed the other act.
¶50 Next, Button contends the state failed to offer the evidence for a proper purpose under Rule 404(b). Contrary to this claim, the state expressly offered the evidence to prove lack of mistake, that is, to rebut Button's claim that the kayakers unexpectedly appeared in his line of fire and he only shot at T.W. inadvertently. See State v. Stein, 153 Ariz. 235, 239 (App. 1987) (upholding the admission of other-act evidence, which demonstrated that the defendant had possessed other drugs, to rebut his claim that the drugs underlying the charged offenses had been accidentally mailed to him). Because the state offered the evidence for a proper purpose, expressly recognized under Rule 404(b), Button's claim is unfounded.
¶51 Finally, Button asserts the probative value of the other-act evidence was outweighed by its prejudicial effect. We view other-act evidence in the "light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect." State v. Harrison, 195 Ariz. 28, 33, ¶ 21 (App. 1998). Because the superior court "is in the best position to balance the probative value of challenged evidence against its potential for unfair prejudice," it has broad discretion in deciding admissibility. Id. "A proper Rule 403 balancing of probative value and prejudicial effect begins with a proper assessment of the probative value of the evidence on the issue for which it is offered." Shotwell v. Donahoe, 207 Ariz. 287, 296, ¶ 34 (2004) (internal quotation omitted). "The greater the probative value . . . and the more significant in the case the issue to which it is addressed, the less probable that factors of prejudice or confusion can substantially outweigh the value of the evidence." Id. (internal quotation omitted).
¶52 As applied here, the other-act evidence was probative to refute Button's claim that he did not intentionally shoot at T.W. or point a gun at the other kayakers. Stated differently, Button's previous threats to shoot perceived trespassers undermined his defense that he simply engaged in target practice and gestured for J.G., P.P., and E.M. to come ashore in a non-threatening manner. Although this other-act evidence contradicted Button's defense, it did not suggest that the jury should decide the matter on an improper basis. See Mott, 187 Ariz. at 545 ("Unfair prejudice results if the evidence has an undue tendency to suggest decision on an improper basis, such as emotion, sympathy, or horror."). Therefore, the superior court did not abuse its discretion by admitting the other-act evidence.
CONCLUSION
¶53 For the foregoing reasons, we vacate the convictions and sentences for disorderly conduct involving weapons, counts 3, 7, 11 and 15. We affirm the remaining convictions and sentences.