State v. Backus

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

SCOTT BACKUS, Appellant.

No. 1 CA-CR 24-0238
FILED 05-08-2026

Appeal from the Superior Court in Yavapai County
No. S1300CR202380410
V1300CR202280018
The Honorable Michael R. Bluff, Judge

AFFIRMED AS MODIFIED

COUNSEL

Zickerman Law Office, Flagstaff
By Adam Zickerman
Counsel for Appellant

Scott Backus, Florence
Appellant

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
STATE v. BACKUS
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge D. Steven Williams and Judge Angela K. Paton joined.

F U R U Y A, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969) for Scott Backus’s
conviction and sentence of Failure to Notify Change of Vehicle Information
(No. S1300CR202380410) and the revocation and reinstatement of his
probation for Possession of Narcotic Drugs (No. V1300CR202280018).
Counsel for Backus has found no arguable questions of law and asks us to
search the record for fundamental error. Backus filed a supplemental brief,
which we have considered. After reviewing the record, we affirm Backus’s
conviction and resulting sentences, with a minor modification to his
presentence incarceration credit.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
conviction and resolve all reasonable inferences against Backus. See State v.
Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998).

¶3 In November 2022, a jury found Backus guilty of Possession
of Narcotic Drugs (Fentanyl). Backus was subsequently placed on four
years’ supervised probation beginning in May 2023. That same month,
Backus met with the Yavapai County Sheriff’s Office (“YCSO”) to complete
his sex offender compliance meeting, which was required because of a 2003
conviction in New York for sexual misconduct. While completing his
registration, Backus stated he was transient and had no vehicles registered
to him.

¶4 Over the next two months, Cottonwood police officers
encountered Backus in a black Ford Crown Victoria registered in his name.
On July 31, 2023, an officer learned that Backus had registered his vehicle
with the Motor Vehicle Division (“MVD”) about two weeks after he
completed his sex offender registration but did not inform the YCSO of the
vehicle as required. Backus was subsequently arrested on August 1 while
sleeping at his mother’s house and charged with two counts of Failure to

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Register as a Sex Offender—one count for failure to report a change of
address and one count for failure to report a change of vehicle.

¶5 Backus initially filed a motion to self-represent but later
withdrew his motion and requested counsel be appointed. Backus filed
another motion for self-representation in October, and the superior court
granted the motion after finding Backus’s waiver of his right to counsel was
knowing, intelligent, and voluntary. Backus then filed a motion to dismiss,
which the court denied.

¶6 Backus also filed a motion for a comparison analysis and a
motion to vacate his sex offender registration requirement. In both motions,
he argued his New York conviction for sexual misconduct was insufficient
to require him to register as a sex offender in Arizona. The court denied the
motions, explaining the requirement to register as a sex offender is an
element the State must prove to the jury.

¶7 On the first day of trial in January 2024, the court granted
Backus’s request to reappoint counsel. On the second day of trial, Backus
made an oral motion for a mistrial and a motion pursuant to Arizona Rule
of Criminal Procedure (“Rule”) 20 for judgment of acquittal. The court
denied both. Following the three-day trial, the jury found Backus not guilty
of Failure to Notify Change of Address but guilty of Failure to Notify
Change of Vehicle Information. The jury also found the State proved
aggravating circumstances, namely that Backus was on felony probation
when he committed the offense. Backus then unsuccessfully moved the
court for a new trial, arguing the verdict was legally unsupported and the
court erred by issuing an improper jury instruction and by denying
Backus’s Rule 20 motion.

¶8 On April 9, 2024, the court sentenced Backus. That hearing
and resulting sentence complied with Backus’s constitutional rights and
Rule 26. The court sentenced Backus to 12 years’ imprisonment with 221
days’ credit for time served and imposed several fines totaling $439.
Because Backus committed a felony while on probation for Possession of
Narcotic Drugs, the court also found an automatic violation of that
probation pursuant to Rule 27.8(e). The court ordered Backus’s probation
be reinstated for a period of thirty-nine months, set to begin upon his
release from prison.

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DISCUSSION1

I. Failure to Notify Change of Vehicle Information

¶9 Counsel for Backus advised that after a diligent search of the
entire record, he found no arguable questions of law. Backus himself raises
six arguments in his supplemental brief: (1) the court abused its discretion
by leaving the interpretation of Arizona Revised Statutes (“A.R.S.”) Section
13-3822(D) to the jury; (2) A.R.S. Section 13-3822(D) is unconstitutionally
vague, overreaching, or was incorrectly applied by the State; (3) the court
provided legally incorrect jury instructions; (4) the court erred by refusing
to vacate his sex offender registration; (5) the prosecutor committed
cumulative misconduct; and (6) the court erred by not giving a jury
instruction pursuant to Hash v. State, 48 Ariz. 43 (1936). We address each
argument in turn.

A. Interpretation of “Change” in A.R.S. Section 13-3822(D)

¶10 Backus argues the court erred by allowing the jury to decide
whether new ownership of a vehicle constitutes a “change” under A.R.S.
Section 13-3822(D). Because Backus raised this issue at trial, we review for
harmless error. State v. Henderson, 210 Ariz. 561, 567 ¶ 18 (2005). An error is
harmless if we conclude “beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” Id.

¶11 The relevant subsection of the statute at issue in Backus’s first
argument reads:

A person who is required to register pursuant to this article
shall notify the sheriff either in person or electronically within
seventy-two hours, excluding weekends and legal holidays,
after the person makes any change in the make, model, color
or license plate of any motor vehicle that the person owns or
regularly operates.

A.R.S. § 13-3822(D).

1 The State did not file a responsive brief in this case. Backus filed a
motion to preclude the State from responding to his supplemental brief
because any answer would be untimely. But the State is not required to file
an answering brief in an Anders appeal, so this issue is moot and we deny
Backus’s motion for that reason.

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¶12 The application of A.R.S. Section 13-3822(D) has two
components as it relates to the “change” element. The first component is
determining what the qualifying circumstances are for a “change.” This is
a legal question that requires the court to interpret the word “change”
within the meaning of the statute. PNC Bank, N.A. v. Coury, 257 Ariz. 52, 55
¶ 8 (App. 2024) (“A cardinal principle of statutory interpretation is to give
meaning, if possible, to every word and provision so that no word or
provision is rendered superfluous.”). Because interpretation is “wholly a
judicial function[,]” State v. Locks, 94 Ariz. 134, 138 (1963), the task of
deciding what qualifying circumstances constitute a “change” must “not be
left to the jury’s speculation[,]” Callender v. Transpacific Hotel Corp., 179 Ariz.
557, 560 (App. 1993). Instead, the jury’s role is to decide the second
component, which is whether the specific facts of the case establish that the
qualifying circumstance actually occurred. State v. Willoughby, 181 Ariz.
530, 536 (1995) (“The jury’s role, as guaranteed by our state and federal
constitutions, is to decide the factual issues of a defendant’s guilt or
innocence.”).

¶13 Here, it was undisputed that Backus did not own the Ford
Crown Victoria when he initially registered as a sex offender with the
YCSO. And Backus does not dispute that this vehicle was registered to him
with the MVD two weeks after that sex offender registration, or that he
failed to inform the YCSO of this change. The question at trial was whether
acquiring a new vehicle after having previously not owned one constitutes
a “change” under the statute. Backus argues specifically that the statute
requires him to report only “physical alterations to a vehicle that [he]
already own[s] or operate[s] regularly” within seventy-two hours, so new
ownership does not subject him to this statute.

¶14 Backus’s argument addresses whether new ownership is a
qualifying circumstance that constitutes a “change” under the statute. As
such, this issue involves statutory interpretation, and it was the court’s role
to make that interpretation for the jury. Locks, 94 Ariz. at 138. The jury’s role,
instead of interpreting the word “change,” was to analyze the evidence and
decide whether new ownership actually occurred. Willoughby, 181 Ariz. at
536. Thus, the court erred by permitting the jury to decide the meaning of
“change.”

¶15 Because the court erred, we must review whether the court’s
error was harmless. Henderson, 210 Ariz. at 567 ¶ 18. To do so, we review
Section 13-3822(D) de novo to determine whether the jury’s accepted
definition—that “any change” includes acquiring a vehicle after initially
registering as a sex offender, where the registrant did not previously own

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any vehicle—is the proper definition of the statute. State ex rel. Montgomery
v. Chavez, 234 Ariz. 255, 256 ¶ 3 (2014). We conclude it is.

¶16 A.R.S. Section 13-3822(D) requires a defendant to notify the
sheriff when he makes “any change in the make, model, color or license
plate” of a vehicle. (Emphasis added). Transitioning from not owning a
vehicle to owning a vehicle is a circumstance that amounts to “any change”
in the make, model, color, and license plate of a vehicle because none
previously existed. This means new ownership constitutes a “change,” and
by finding Backus guilty, the jury necessarily used the proper definition.
Thus, the court’s error did not affect Backus’s verdict, so the error was
harmless beyond a reasonable doubt.

B. Constitutionality of A.R.S. Section 13-3822(D)

¶17 Backus argues that if the definition of “change,” as used in
A.R.S. Section 13-3822(D), does include acquiring ownership of a new
vehicle, then the statute is unconstitutionally vague or “overreaching.” We
review de novo whether a statute is unconstitutionally vague or overbroad.
State v. Causbie, 241 Ariz. 173, 177 ¶ 15 (App. 2016); State v. Brock, 248 Ariz.
583, 588 ¶ 10 (App. 2020). We presume constitutionality, and “the
challenging party bears the burden of establishing its invalidity.” Brock, 248
Ariz. at 588 ¶ 10 (citation modified). Further, “[i]n Arizona, opening briefs
must present significant arguments, supported by authority, setting forth
an appellant’s position on the issues raised.” State v. Carver, 160 Ariz. 167,
175 (1989); see also Ariz. R. Crim. P. 31.10(a)(7) (stating that arguments must
contain a defendant’s contentions with supporting reasons for each
contention, and with citations of legal authorities and appropriate
references to the record). Failure to make sufficient argument in an opening
brief “usually constitutes abandonment and waiver of that claim.” Carver,
160 Ariz. at 175. “Merely mentioning an argument is not enough.” State v.
Moody, 208 Ariz. 424, 452 n.9 (2004).

¶18 Here, rather than provide arguments on vagueness and
breadth with supporting case law, Backus states his argument in conclusory
fashion and then merely poses several hypothetical questions. Such
questions are not arguments, see id., so Backus fails to overcome the
presumption of constitutionality, Brock, 248 Ariz. at 587 ¶ 10. Thus, he has
waived this issue.

C. Jury Instructions

¶19 Backus contends the court’s final jury instruction deprived
him of due process because it combined two elements into one. Because

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Backus did not object to this instruction at trial, we review for fundamental
error only. Henderson, 210 Ariz. at 568 ¶ 22. We will reverse under
fundamental error review if the superior court erred, the error was
fundamental, and the error resulted in prejudice. State v. Escalante, 245 Ariz.
135, 142 ¶ 21 (2018). An error is fundamental if it “went to the foundation
of the case[,]” took away “a right essential to [Backus’s] defense,” or “was
so egregious that [Backus] could not possibly have received a fair trial.” Id.
Backus “bears the burden of persuasion at each step.” Id.

¶20 As relevant here, the court instructed the jury that the State
must prove Backus (1) was required to register as a sex offender; (2) knew
or should have known he was required to register; and (3) failed to notify
the sheriff within seventy-two hours “of any change in the make, model,
color or license plate of any motor vehicle that the person owns or regularly
operates.” Backus contends the instructions “told the jury that the change
was made, [and] the only question was did [he] notify the Sheriff.” He
argues the third element should have been split into two elements, namely
that he “first, made the change [to his vehicle], and then second . . . failed
to notify.”

¶21 But his interpretation of the instruction is unreasonable. The
plain language of the court’s instruction clearly required the jury to make a
factual finding on whether circumstances constituting a change occurred.
Moreover, Backus has failed to show any prejudice. Backus argues the jury
did not “find [him] guilty of making a change, they found [him] guilty of
not notifying the Sheriff of what the State incorrectly told them was a
change.” But he fails to point to any evidence in the record showing the jury
was unaware or did not understand that it needed to find a change
occurred. See id. (noting prejudice “involves a fact-intensive inquiry”). To
the contrary, the record shows that during closing arguments, both the State
and Backus’s counsel reminded the jury that it was responsible for
determining whether there was a “change in the make, model, color or
license plate” of Backus’s vehicle. Thus, Backus’s argument fails.

D. Comparison Analysis and Sex Offender Registration

¶22 Backus further asserts the court erred by not granting a
comparison analysis to determine if he is required to register as a sex
offender under A.R.S. Section 13-3821(A) and by refusing to vacate his sex
offender registration pursuant to State v. Kuntz, 209 Ariz. 276 (App. 2004).
We review the application of Section 13-3821(A) de novo. Id. at 278 ¶ 5.
Because Backus raised this issue before trial, we review for harmless error.
Henderson, 210 Ariz. at 567 ¶ 18.

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¶23 A.R.S. Section 13-3821(A) requires a person to register as a sex
offender “for an offense committed in another jurisdiction that if committed
in this state would be a violation or attempted violation” of one of the
offenses listed in the statute. When deciding whether a person is subject to
A.R.S. Section 13-3821(A), courts may consider only “the judgment of a
foreign conviction and [a comparison of] the elements of the foreign offense
with the corresponding Arizona offense existing at the time of the
conviction . . . .” Kuntz, 209 Ariz. at 280 ¶ 13.

¶24 Here, Backus was convicted of sexual misconduct under New
York Penal Law Section 130.20 in 2003. Under this statute, a person commits
sexual misconduct when:

1. He or she engages in sexual intercourse with another
person without such person’s consent; or

2. He or she engages in deviate sexual intercourse with
another person without such person’s consent; or

3. He or she engages in sexual conduct with an animal or a
dead human body.

N.Y. Penal Law § 130.20 (2003). In Arizona, sexual assault is a registrable
offense if it satisfies the elements of A.R.S. Section 13-1406(A). A.R.S.
§ 13-3821(A)(5). In 2003, a person committed sexual assault under A.R.S.
Section 13-1406(A) “by intentionally or knowingly engaging in sexual
intercourse or oral sexual contact with any person without consent of such
person.”

¶25 Backus argues that because the New York statute in 2003
included a third definition of sexual misconduct that did not appear in
A.R.S. Section 13-1406(A)—namely, “engag[ing] in sexual conduct with an
animal or a dead human body[,]” N.Y. Penal Law § 130.20(3) (2003)—his
case is similar to the situation in Kuntz and his registration should therefore
be vacated. We disagree.

¶26 In Kuntz, we concluded Mr. Kuntz was not required to
register in Arizona for a Minnesota conviction because, after excluding
consideration of all evidence other than the judgment of foreign conviction,
and then comparing the elements of the relevant statutes, we determined it
was possible for Mr. Kuntz to violate the Minnesota statute without
violating the Arizona statute. 209 Ariz. at 280 ¶ 12. In coming to that
conclusion, we considered the Minnesota statute as a whole, rather than a

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specific subsection, because the Minnesota judgment did not specify which
subsection Mr. Kuntz had violated. Id. at 280 ¶ 11 n.3.

¶27 True, Backus’s New York judgment does not specify which
subsection of New York Penal Law Section 130.20 he was convicted under.
And we acknowledge that the New York statute does contain a subsection
by which a conviction would not require registration under A.R.S. Section
13-3821. But where the Certificate of Conviction in Kuntz did not contain
anything to determine the subsection Mr. Kuntz was convicted of, here, we
can verify from examining only the New York Certificate of Conviction that
Backus was originally charged with “Endangering the welfare of a child,”
N.Y. Penal Law § 260.10, and “Rape in the second degree,” N.Y. Penal Law
§ 130.30, neither of which involve sexual conduct with an animal or a dead
human body. Thus, the New York Certificate of Conviction makes clear that
Backus did not violate N.Y. Penal Law Section 130.30(3) and Kuntz is
distinguishable from the circumstances applicable to this case. As such, we
exclude consideration of the third subsection of the New York statute in our
comparison.

¶28 As noted above, in 2003, New York defined sexual
misconduct as “engag[ing] in sexual intercourse [or deviate sexual
intercourse] with another person without such person’s consent[.]” N.Y.
Penal Law § 130.20(1)–(2) (2003). In Arizona, in 2003, sexual assault was
defined as “intentionally or knowingly engaging in sexual intercourse or
oral sexual contact with any person without consent of such person.” A.R.S.
§ 13-1406(A) (2003). Because violation of either N.Y. Penal Law Section
130.20(1) or (2) would also violate A.R.S. Section 13-1406(A), contrast Kuntz,
209 Ariz. at 280 ¶¶ 11–12, it does not matter which subsection under which
he was convicted and we conclude Backus is required to register as a sex
offender. Thus, we discern no error.

E. Prosecutorial Misconduct

¶29 Backus contends that his conviction should be overturned
because the prosecutor added, without probable cause, the count of failure
to notify a change in address, allegedly in an attempt “to bolster the chances
that [the prosecutor] would gain a conviction.” But this argument relates to
a charge of which Backus was acquitted, so we will not consider it on
appeal. See A.R.S. § 13-4033(A)(1) (stating that “appeal may be taken by the
defendant only from: a final judgment of conviction . . . .” (emphasis added)).

¶30 Backus also argues the prosecutor engaged in misconduct by
having a witness testify that Backus had previously been to prison and by

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telling the jury during closing arguments that Backus is a rapist and a level
3 sex offender. Because these issues were not raised at trial, we review for
fundamental error. Henderson, 210 Ariz. at 568 ¶ 22. Backus states the
prosecutor’s statements were prejudicial but does not cite any evidence in
the record or further explain how he was prejudiced. Thus, because Backus
has not established prejudice, his argument fails.

F. Hash Instruction

¶31 Backus’s final argument is that the court erred by denying his
request for an instruction on reasonable doubt under Hash v. State, 48 Ariz.
43 (1936), and such error “ultimately told the jury that they could assume
guilt.” Because Backus raised this issue before and during trial, we review
for harmless error. Henderson, 210 Ariz. at 568 ¶ 22.

¶32 Backus requested the court replace the reasonable doubt
instruction with a Hash instruction that said, “It is the law that no verdict of
guilt can stand on mere suspicion, probabilities, or supposition, for these
alone do not warrant a conviction.” 48 Ariz. at 57. In Hash, our supreme
court concluded it was error to omit this instruction because the trial court’s
instructions in that case did not adequately cover the same notion. Id. at 58
(concluding court’s instructions “properly advised the jury as to its duty,
but hardly went far enough to cover the points of the requested
instructions”). Our supreme court further stated that if “the same thought
was covered by the court’s instructions, then the refusal of these would not
be error.” Id.; see also State v. Musgrove, 223 Ariz. 164, 167 ¶ 6 (App. 2009)
(“A party is entitled to an instruction on any theory reasonably supported
by the evidence” unless the requested instruction “is covered adequately
by other instructions[.]”).

¶33 Here, the court denied Backus’s request and explained the
jury instructions would adequately address the same notion. The
reasonable doubt instruction given to the jury at trial stated, in part, that
“[t]he State must prove guilt beyond a reasonable doubt based on the
evidence.” Drawing from the Revised Arizona Jury Instructions, the court
defined evidence and further instructed that the jury “should not guess
about any fact” or “be influenced by sympathy or prejudice.” These
instructions sufficiently informed the jury that not only must the State
prove Backus’s guilt beyond a reasonable doubt, but also that the proof
must come directly from the evidence. Thus, because the court’s instruction
adequately covered Backus’s requested instruction, it was not required to
give that instruction and we discern no error. Hash, 48 Ariz. at 58.

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G. Presentence Credit

¶34 “A defendant is entitled to presentence incarceration credit
for all time spent in custody pursuant to an offense.” State v. Stevens, 173
Ariz. 494, 495–96 (App. 1992); see also A.R.S. § 13-712(B). Upon review of the
record, if we determine the court failed to award all presentence
incarceration credit, we may modify the defendant’s sentence to include
such credit without remanding to the superior court. See Stevens, 173 Ariz.
at 496; A.R.S. § 13-4037 (appellate court may “correct the sentence to
respond to the verdict or finding”).

¶35 At his sentencing hearing, Backus was awarded presentence
incarceration credit for 221 days. After reviewing the dates in which Backus
was in custody, we have determined that Backus spent 222 days in custody
before his sentencing hearing. Thus, we order that Backus’s sentencing
order is modified and amended to grant Backus 222 days of credit for
presentence incarceration.

II. Probation for Possession of Narcotic Drugs

¶36 At the sentencing hearing for Backus’s conviction of Failure
to Notify Change of Vehicle Information, the court found Backus’s
conviction was an automatic probation violation in his 2022 case for
Possession of Narcotic Drugs, pursuant to Rule 27.8(e). The court ordered
Backus’s probation be reinstated for a period of thirty-nine months, set to
begin upon his release from prison. Because we affirm Backus’s conviction
for Failure to Notify Change of Vehicle Information and the court
conducted a disposition hearing in compliance with Rule 27.8, we likewise
affirm the court’s reinstatement of probation.

CONCLUSION

¶37 This court has read and considered counsel’s brief, as well as
Backus’s brief, and has searched the entire record for fundamental error and
found none. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999)
(instructing the court to review the record for reversible error).

¶38 Further, the record demonstrates that (1) all proceedings
complied with the Arizona Rules of Criminal Procedure, (2) Backus was
represented by counsel during the proceeding until he knowingly,
intelligently, and voluntarily waived his right to counsel, and (3) Backus
was present at all critical stages. State v. Hampton, 208 Ariz. 241, 243–44 ¶ 7
(2004) (“A defendant can affirmatively waive the right to counsel at trial, as

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long as the waiver is knowing, voluntary and intelligent.”); State v. Bohm,
116 Ariz. 500, 503 (1997) (right to be present at all critical stages).

¶39 We modify Backus’s sentence to account for the full 222 days
of presentence incarceration but otherwise affirm his conviction and
resulting sentences of 12 years in prison and 39 months of probation.

¶40 Upon the filing of this decision, counsel is directed to inform
Backus of the status of the appeal and of his future options. Defense counsel
has no further obligations unless, upon review, counsel identifies an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Backus shall have
30 days from the date of this decision to proceed, if he desires, with a pro
se motion for reconsideration or petition for review.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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