State v. Etienne ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JESSE MICHAEL ETIENNE, Appellant.
No. 1 CA-CR 20-0525
FILED 6-14-2022
Appeal from the Superior Court in Yavapai County
No. V1300CR201880344
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Joy Bertrand Esq., Scottsdale
By Joy Bertrand
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.
STATE v. ETIENNE
Decision of the Court
B A I L E Y, Judge:
¶1 Jesse Michael Etienne appeals his conviction and sentence for
second-degree murder. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The trial evidence revealed the following: Cottonwood police
officer Roger Scarim was monitoring traffic on a state highway one evening
when a passing red car registered 107 miles per hour on his speed gun. The
posted speed limit was 55 miles per hour.
¶3 Officer Scarim followed the red vehicle northbound and
activated his lights and siren. After the speed limit decreased to 45 miles
per hour, the officer observed the vehicle enter an intersection against a red
traffic light without braking, and he lost sight of the vehicle’s taillights.
Mistakenly thinking the driver turned off the car’s lights, Officer Scarim
continued the pursuit.
¶4 Meanwhile, B.A. and his wife were travelling southbound on
the same road. When they were approximately 2,000 feet north of the
intersection where Officer Scarim lost sight of the speeding vehicle, they
saw approaching headlights “kind of going all over the road” from a vehicle
that “didn’t even appear to be on four wheels” while heading toward them.
Seconds later, a northbound red car veered “all the way across right in front
of” the couple before hitting the curb and flipping “end over end” into an
adjacent ravine. As B.A. and his wife stopped, they saw Officer Scarim
drive by them northbound. B.A. called 911 to report the crash, and dispatch
relayed the information to Officer Scarim, who returned to the scene.
¶5 Officer Scarim located a heavily damaged red BMW sedan on
its side approximately 60 feet down an embankment along the roadway.
Etienne, the car’s driver, was standing near the vehicle, bleeding profusely
from his head and face. A battered human torso was on the ground next to
the BMW’s hood.
¶6 The ensuing investigation revealed a “debris field of
biological matter” stretching more than 100 feet on the roadway northward
from the crosswalk where the car Officer Scarim had been following drove
through a red light. The State’s accident reconstructionist estimated the
BMW had been travelling 100 to 101 miles per hour when it ran the red light
and struck the victim in the crosswalk. Investigators also learned that
Etienne was issued four speeding tickets during the two-year period
preceding the incident.
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STATE v. ETIENNE
Decision of the Court
¶7 The jury returned a guilty verdict on the charged offense of
second-degree murder. Etienne timely filed two unsuccessful post-verdict
motions, one a motion for judgment of acquittal under Arizona Rule of
Criminal Procedure (“Rule”) 20, and the other a Rule 24.1 motion for new
trial based on purported instances of prosecutorial error, a lack of evidence
supporting the verdict, and perceived errors in the jury instructions. At
sentencing, Etienne admitted he was on probation at the time of the offense,
and the trial court imposed a presumptive 16-year sentence.
¶8 Etienne timely appealed. We have jurisdiction under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A).
DISCUSSION
I. Sufficiency of the Evidence
¶9 Etienne argues insufficient evidence supports his conviction.
He claims no direct evidence established that the BMW he was driving
struck the victim, and he contends the State failed to prove he acted with
the requisite state of mind.
¶10 We review claims of insufficient evidence de novo, State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011), and our review is limited to whether
substantial evidence exists to support the verdict, see State v. Scott, 177 Ariz.
131, 138 (1993); Ariz. R. Crim. P. 20(a) (directing courts to enter a judgment
of acquittal “if there is no substantial evidence to support a conviction”).
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. Mathers, 165 Ariz. 64, 67 (1990) (quoting State
v. Jones, 125 Ariz. 417, 419 (1980)).
¶11 In our review, we do not distinguish between the probative
value of direct and circumstantial evidence. State v. Bible, 175 Ariz. 549, 560
n.1 (1993), abrogation on other grounds recognized by McKinney v. Ryan, 813
F.3d 798, 815 (9th Cir. 2015). Further, we evaluate the evidence in the light
most favorable to sustaining the verdict, meaning we draw all reasonable
inferences and resolve any evidentiary conflicts in support thereof. State v.
Guerra, 161 Ariz. 289, 293 (1989).
¶12 As relevant here, “[a] person commits second degree murder
if[,] without premeditation [and] [u]nder circumstances manifesting
extreme indifference to human life, the person recklessly engages in
conduct that creates a grave risk of death and thereby causes the death of
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STATE v. ETIENNE
Decision of the Court
another person.” A.R.S. § 13-1104(A)(3). “‘Recklessly’ means, with respect
to a result or to a circumstance described by a statute defining an offense,
that a person is aware of and consciously disregards a substantial and
unjustifiable risk that the result will occur or that the circumstance exists.”
A.R.S. § 13-105(10)(c).
¶13 Considering the circumstantial evidence, as outlined above,
the jury could reasonably conclude that Etienne was driving at least 55
miles per hour over the speed limit at night when he failed to stop at a red
light and struck the victim, killing him instantly. Based on B.A.’s and his
wife’s description of the red car crossing into oncoming traffic before
and/or while crashing, the location of the victim’s torso next to Etienne’s
damaged vehicle, and the location of the debris field of blood and body
parts, any conclusion that someone other than Etienne struck the victim is
not reasonable.
¶14 Additionally, based on the same evidence, and especially in
conjunction with the four speeding tickets issued to Etienne, the jury could
reasonably conclude that he consciously disregarded the risk associated
with driving 100 miles per hour through a red light; namely, the risk of
striking and killing another motorist or pedestrian. And because the State
does not have “to negate every conceivable hypothesis of innocence when
guilt has been established by circumstantial evidence,” State v. Nash, 143
Ariz. 392, 404 (1985) (citation omitted), Etienne’s innocent explanations of
the evidence do not require a contrary conclusion. Accordingly, substantial
evidence supports the verdict, and the trial court properly denied Etienne’s
Rule 20 and Rule 24.1 motions on this basis. See State v. Neal, 143 Ariz. 93,
98 (1984) (“A Rule 20 motion is designed to test the sufficiency of the state’s
evidence.”); State v. Mincey, 141 Ariz. 425, 432-33 (1984) (noting the
similarity of Rule 20 and Rule 24.1 standards and deciding issues regarding
sufficiency and the weight of the evidence without separate analyses); State
v. Davis, 226 Ariz. 97, 99, ¶ 7 (App. 2010) (concluding the trial court did not
abuse its discretion in denying a motion for new trial based on a claim that
the verdict was against “the weight of the evidence” where the State
presented evidence sufficient to support a verdict of guilt).
II. Photographic Evidence
¶15 Etienne argues the trial court reversibly erred by admitting,
over his objection, several “gory” crime scene photographs of the victim’s
torso in violation of Rules 401 and 403 of the Arizona Rules of Evidence. At
the close of the State’s case-in-chief, Etienne also unsuccessfully moved for
a mistrial, arguing again that the photographs were improperly admitted.
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STATE v. ETIENNE
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¶16 We review a trial court’s admission of photographs and
denial of a mistrial motion for an abuse of discretion. State v. Bocharski, 200
Ariz. 50, 56, ¶ 27 (2001); State v. Walton, 159 Ariz. 571, 581 (1989), overruled
on other grounds by Ring v. Arizona, 536 U.S. 584, 603 (2002).
¶17 To determine the admissibility of a purportedly gruesome
photograph, the trial court considers the relevance of the photograph, its
inflammatory nature, and whether its probative value is outweighed by the
potential for prejudice. State v. Cruz, 218 Ariz. 149, 168-69, ¶ 125 (2008)
(citations omitted); see also Ariz. R. Evid. 401 (“Evidence is relevant if . . . it
has any tendency to make a fact more or less probable than it would be
without the evidence; and . . . the fact is of consequence in determining the
action.”), 403 (“The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative
evidence.”). Relevant photographs that are gruesome or inflammatory may
be admissible unless they are “admitted for the sole purpose of inflaming
the jury.” State v. Morris, 215 Ariz. 324, 339, ¶ 70 (2007) (citation omitted).
¶18 The torso photographs—each depicting the BMW and the
adjacent torso from a different angle—were relevant because they helped
illustrate what happened. See State v. Rienhardt, 190 Ariz. 579, 584 (1997),
abrogation on other grounds recognized by McKinney, 813 F.3d at 816; see also
Morris, 215 Ariz. at 339, ¶ 70 (“Photographs of a victim’s body are always
relevant because ‘the fact and cause of death are always relevant in a
murder prosecution.’” (citations omitted)). Indeed, the photographs were
highly probative because, as noted, they depicted a key piece of evidence
tying Etienne to the killing. And specifically, the visible state of the victim’s
torso was relevant for determining Etienne’s excessive speed at the time of
the collision. As the State’s expert testified, a vehicle travelling 45 miles per
hour can dismember a human body. In light of the photographs’ relevance,
the trial court acted within its discretion in determining the torso
photographs were not introduced to inflame the jury. See Rienhardt, 190
Ariz. at 584 (“There is nothing sanitary about murder, and there is nothing
in Rule 403, Ariz. R. Evid., that requires a trial judge to make it so.”). The
court did not err by admitting the photographs.1
1 Because the photographs were relevant to establish Etienne was
driving over the speed limit when he struck the victim, we reject Etienne’s
argument that the prosecutor engaged in misconduct by proffering the
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III. Prosecutorial Error
¶19 Etienne contends he was entitled to a new trial based on
multiple instances of prosecutorial error or misconduct during closing
arguments.2 We disagree.
¶20 We review the trial court’s denial of a new trial motion based
on claims of prosecutorial error for an abuse of discretion. See generally
Miller v. Superior Ct., 189 Ariz. 127, 129 (App. 1997); see also State v. Lee, 189
Ariz. 608, 616 (1997) (noting that, because the trial court is in the best
position to determine the effect of a prosecutor’s comments on the jury, we
will not disturb the trial court’s ruling absent an abuse of discretion).
¶21 “To prevail on a claim of prosecutorial [error], a defendant
must demonstrate that ‘(1) misconduct is indeed present; and (2) a
reasonable likelihood exists that the misconduct could have affected the
jury’s verdict, thereby denying defendant a fair trial.’” State v. Moody, 208
Ariz. 424, 459, ¶ 145 (2004) (citation omitted). That is, if a defendant
establishes the presence of prosecutorial error, he must demonstrate that it
“so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
evidence for purposes of determining his driving speed. Although the
State’s case agent, who was trained and experienced in investigating vehicle
accidents, testified that the significantly damaged torso’s visible
characteristics alone were insufficient to determine the driver’s speed, it
does not necessarily follow that the torso photographs were immaterial for
such a purpose. The case agent also estimated that Etienne was driving 100
miles per hour when he struck the victim, and the photographs were
admissible to corroborate that testimony. See Morris, 215 Ariz. at 339,
¶¶ 70-71 (concluding that photographic evidence of the victim’s body was
admissible for corroboration purposes). The prosecutor’s stated rationale
for admitting the photographs was proper.
2 In 2020, our supreme court instructed that a distinction be made
between prosecutorial “error” and “misconduct.” See In re Martinez, 248
Ariz. 458, 470, ¶ 47 (2020) (“When reviewing the conduct of prosecutors in
the context of ‘prosecutorial misconduct’ claims, courts should differentiate
between ‘error,’ which may not necessarily imply a concurrent ethical rules
violation, and ‘misconduct,’ which may suggest an ethical violation.”).
Cases decided before Martinez generally do not make that distinction,
referring to instances of prosecutorial impropriety as “misconduct.” See,
e.g., id. at 463-65, ¶¶ 9-19.
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STATE v. ETIENNE
Decision of the Court
“Reversal on the basis of prosecutorial misconduct requires that the
conduct be so pronounced and persistent that it permeates the entire
atmosphere of the trial.” State v. Atwood, 171 Ariz. 576, 611 (1992) (internal
quotation marks and citations omitted), disapproved on other grounds by State
v. Nordstrom, 200 Ariz. 229, 241, ¶ 25 (2001); accord Lee, 189 Ariz. at 616.
¶22 Etienne points to five statements that he contends amounted
to prosecutorial error. We address each in turn, keeping in mind that
counsel have “wide latitude” when arguing to the jury. State v. Jones, 197
Ariz. 290, 305, ¶ 37 (2000).
¶23 First, referring to the four speeding tickets, the prosecutor
urged the jury to find that Etienne was “aware of the dangers of speeding.”
That comment was proper because it was a reasonable inference to draw
from the evidence. See Bible, 175 Ariz. at 602 (“[D]uring closing arguments
counsel may summarize the evidence, make submittals to the jury, urge the
jury to draw reasonable inferences from the evidence, and suggest ultimate
conclusions.” (citations omitted)).
¶24 Second, the prosecutor argued that Etienne “was aware of
and consciously disregarded a substantial and unjustifiable risk that
someone might die as a result of his conduct.” (Emphasis added.) But the
second-degree murder statute requires proof that a defendant “recklessly
engages in conduct that creates a grave risk of death and thereby causes the
death of another person.” A.R.S. § 13-1104(A)(3). Nonetheless, whatever
error occurred based on the prosecutor’s use of the word “might” was
cured by both the final jury instructions, which correctly mirrored the
statutory language of § 13-1104(A)(3), and the prosecutor’s correction when
he immediately thereafter stated: “[D]efendant was aware of and
consciously disregarded a substantial and unjustifiable risk that someone
will die as a result of his conduct.” On this record, we conclude that the
prosecutor’s use of the word “might” did not affect the verdict.
¶25 Third, during initial closing argument, the prosecutor stated:
“The State is not required to prove the why or defendant’s motive for
driving at over 100 miles per hour through a red light striking and killing
[the victim] in the crosswalk. The State just needs to prove he did this.” In
rebuttal, the prosecutor continued:
The State does not need to prove defendant’s intent or
knowledge. The State needs to prove the defendant acted
recklessly; that defendant is aware of and consciously
disregards a substantial and unjustifiable risk that his conduct
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STATE v. ETIENNE
Decision of the Court
will result in death. That is what the State needs to prove, not
the why.
¶26 Despite Etienne’s objection, the prosecutor was not arguing
that the State did not bear the burden of proving Etienne’s mental state.
Rather, the prosecutor correctly informed the jury that second-degree
murder requires proof of recklessness, not that Etienne intended or knew
the victim would die as a result of his driving. Further, the prosecutor’s
statement that proof of motive was not required correctly reflected the law.
See State v. Hunter, 136 Ariz. 45, 50 (1983) (noting that, although motive is
relevant, it is not an element of murder).
¶27 Fourth, the prosecutor referred to defense counsel’s cross-
examination of the accident reconstructionist on the topic of converting
miles per hour to feet per second and noted that the expert “corrected
defense counsel on her math, and she agreed she was mistaken.” The
prosecutor’s statement correctly reflected the exchange between defense
counsel and the witness, and viewed in context, it was not denigrating
toward defense counsel as Etienne asserts. Rather, the prosecutor was
reminding the jurors that, consistent with their instructions, “what defense
counsel and I say is not evidence.” We discern no error.
¶28 Fifth, as he approached the conclusion of his initial closing
argument, the prosecutor told the jury:
Don’t be misled. Don’t be confused. The defense is
going to challenge and attack the two very things they know.
They know that demonstrates extreme indifference to human
life; running a red light at over 100 miles per hour. Don’t
believe them. Don’t be fooled by them. Confusion is the
jury’s biggest problem. If defense counsel is able to confuse
you, she will put doubt in your minds.
¶29 Defense counsel objected, arguing at the ensuing bench
conference that the prosecutor was “maligning my integrity.” The court
sustained the objection and asked defense counsel, “How do you suggest
we correct it?” Defense counsel responded, “I think the State has to say that
. . . they are in no way maligning my integrity.” When the proceedings
resumed in front of the jury, the prosecutor did as suggested, stating, “I
would like to say that in no way are my comments that I’m making right
now [] maligning the integrity of defense counsel. Don’t be confused by the
evidence that may be presented to you.” Given the prosecutor’s latter
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STATE v. ETIENNE
Decision of the Court
statement, we conclude that any initial error by the prosecutor did not
impact the verdict.
¶30 In sum, none of the prosecutor’s challenged statements
standing alone denied Etienne a fair trial. They also did not cumulatively
do so because the prosecutor’s errors were not “persistent and pervasive,”
and nothing in the record indicates the prosecutor intentionally erred to
prejudice Etienne. See State v. Hulsey, 243 Ariz. 367, 394, ¶ 122 (2018)
(“When assessing cumulative error, this Court considers whether persistent
and pervasive misconduct occurred and whether the cumulative effect of
the incidents shows that the prosecutor intentionally engaged in improper
conduct and did so with indifference, if not specific intent, to prejudice the
defendant.” (internal quotation marks and citation omitted)). Accordingly,
Etienne was not entitled to a new trial on the basis of prosecutorial error or
misconduct.
IV. Jury Instructions
¶31 Etienne argues the trial court erred by denying his request for
two jury instructions. We review the refusal to give requested jury
instructions for an abuse of discretion, deferring to the trial court’s
evaluation of the evidence. State v. Wall, 212 Ariz. 1, 3, 5, ¶¶ 12, 23 (2006).
A party is entitled to a jury instruction on any theory reasonably supported
by the evidence, Moody, 208 Ariz. at 467, ¶ 197, but a court does not err by
refusing to give an instruction that “does not fit the facts of the particular
case[] or is adequately covered by the other instructions,” State v. Hussain,
189 Ariz. 336, 337 (App. 1997) (citation omitted); see also State v. Mott, 187
Ariz. 536, 546 (1997) (“A trial court is not required to give a proposed
instruction when its substance is adequately covered by other instructions.”
(citation omitted)). Conversely, “[a] court abuses its discretion by giving an
instruction contrary to law or unsupported by the record.” State v. Aragon
ex rel. Pima Cnty., 252 Ariz. 525, 528, ¶ 6 (2022) (citations omitted).
¶32 Etienne contends he was entitled to an instruction under
A.R.S. § 28-672, which makes it a class 1 misdemeanor to seriously injure or
kill someone as a result of violating a traffic regulation. According to
Etienne, that offense is a “proper” lesser-included offense of second-degree
murder and should have been available for the jury’s consideration.
¶33 A lesser-included offense is an offense “composed solely of
some but not all of the elements of the greater crime so that it is impossible
to have committed the crime charged without having committed the lesser
one.” State v. Celaya, 135 Ariz. 248, 251 (1983) (citation omitted). This court
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Decision of the Court
has recently addressed whether violation of § 28-672 is a lesser-included
offense of second-degree murder and concluded it is not. See State v. Teran,
1 CA-CR 21-0148, 2022 WL 1146355, *6, ¶ 36 (Ariz. App. Apr. 19, 2022). We
perceive no reason to depart from Teran. The trial court therefore did not
abuse its discretion by denying Etienne’s request to instruct the jury under
§ 28-672. See Wall, 212 Ariz. at 3, ¶¶ 13-14 (noting the trial court is required
to instruct only on “necessarily included offenses”); accord State v. Gipson,
229 Ariz. 484, 486, ¶ 14 n.2 (2012) (“An offense is necessarily included ‘when
it is lesser included’ and ‘the facts of the case as presented at trial are such
that a jury could reasonably find that only the elements of a lesser offense
have been proved.’” (quoting Wall, 212 Ariz. at 3, ¶ 14)).
¶34 Etienne also asserts the trial court erred by denying his
request for a causation instruction under Revised Arizona Jury Instructions
(“RAJI”) Statutory Criminal Instruction 2.03 (5th ed. 2019). That
superseding cause instruction reads as follows:
Conduct is the cause of a result when both of the following
exist:
1. But for the conduct the result in question would not have
occurred.
2. The relationship between the conduct and result satisfies
any additional causal requirements imposed by the definition
of the offense.
In order to find the defendant guilty of [the crime], you must
find that the [death] [injury] was proximately caused by the
acts of the defendant.
The proximate cause of a [death] [injury] is a cause which, in
natural and continuous sequence, produces the [death]
[injury], and without which the [death] [injury] would not
have occurred.
Proximate cause does not exist if the chain of natural effects
and cause either does not exist or is broken by a superseding
intervening event that was unforeseeable by the defendant
and, with the benefit of hindsight, may be described as
abnormal or extraordinary.
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STATE v. ETIENNE
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The State must prove beyond a reasonable doubt that a
superseding intervening event did not cause the [death]
[injury].
RAJI Stat. Crim. 2.03 (emphasis added).
¶35 “[B]oth ‘but for’ causation and proximate cause must be
established in a criminal case.” State v. Marty, 166 Ariz. 233, 236 (App. 1990)
(citation omitted). Under the facts of this case, the State was required to
prove that “but for” Etienne’s conduct, the victim’s death would not have
occurred. See id.; see also A.R.S. § 13-203(A)(1) (stating that conduct is the
cause of a result when the result in question would not have occurred but
for the conduct at issue). To establish proximate cause, the State was
required to establish that the difference between the result intended and the
harm actually suffered was not so extraordinary that it would be unfair to
hold Etienne responsible for the victim’s death. See Marty, 166 Ariz. at 237(citation omitted). Proximate cause may be interrupted when “another
cause ‘with which the defendant was in no way connected intervenes, and
but for which death would not have occurred.’” Id. (citations omitted). An
intervening cause is a superseding event, but only when unforeseeable and,
with benefit of hindsight, abnormal or extraordinary. State v. Bass, 198 Ariz.
571, 575-76, ¶¶ 11-13 (2000).
¶36 “To determine whether a defendant is entitled to a
superseding cause jury instruction, a court should first determine whether
the event is an intervening event.” Aragon, 252 Ariz. at 530, ¶ 17. “[A]n
intervening event is ‘one that actively operates in producing harm after the
original actor’s act or omission has been committed.’” Id. (quoting Herzberg
v. White, 49 Ariz. 313, 321 (1937)) (ellipsis and additional citations omitted).
“[W]here the defendant’s course of conduct actively continues up to the
time the injury is sustained, then any outside force which is also a
substantial factor in bringing about the injury is a concurrent cause of the
injury and never an intervening force.” Id. at 529, ¶ 11 (internal quotation
marks and citations omitted).
¶37 Here, the victim’s dark clothing and theoretical jaywalking3
did not “actively operate” to cause his death after Etienne ran the red light
3 The debris field was the only evidence establishing the victim’s
location at the time he was struck, and it indicated he was in the
intersection’s crosswalk. Nonetheless, Etienne argued to the jury that
vehicles passing through the debris field possibly disrupted it, thereby
indicating that the point of impact could have been outside the crosswalk.
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STATE v. ETIENNE
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at a high rate of speed. The victim’s behavior was not an intervening event
and therefore not a superseding cause. See id. at ¶ 10 (explaining that, if an
event is not an intervening one, it is not a superseding cause for purposes
of determining whether a defendant is entitled to a superseding cause
instruction). Accordingly, the trial court did not abuse its discretion in
denying the causation instruction.
¶38 Because we have determined the trial court correctly denied
Etienne’s requested jury instructions, the court did not err in denying
Etienne’s motion for new trial on this basis.
V. Sentence
¶39 Finally, Etienne argues his 16-year flat-time sentence was
improperly enhanced because, as compared to other vehicular homicide
cases, it reflects an arbitrarily harsh outcome in violation of his due process
rights. But the trial court was required by statute to impose the sentence
because Etienne was on probation at the time of the offense. See A.R.S.
§§ 13-708, -710(A). Etienne’s argument is more properly made to the
Arizona Legislature, not this court. See State v. Jackson, 186 Ariz. 490, 491-
92 (App. 1996).
¶40 Etienne’s similar claim—that his sentence violates the Eighth
Amendment’s and Arizona’s prohibitions against cruel and unusual
punishment—is without merit. See U.S. Const. amend. VIII; Ariz. Const.
art. 2, § 15; see also State v. Long, 207 Ariz. 140, 144, ¶ 21 n.2 (App. 2004)
(treating the provisions as coterminous). Etienne engaged in highly
reckless conduct that endangered other motorists and led to the violent
death of an innocent person. In these circumstances, a 16-year prison term
is not disproportionate, much less grossly so. See Jackson, 186 Ariz. at 492.
CONCLUSION
¶41 Etienne’s conviction and sentence are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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