NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

VÁSQUEZ, Judge.

¶1 Appellant George Urquides Jr. appeals from his convictions for second-degree murder and aggravated assault. He maintains the trial court abused its discretion in granting the state's motion to preclude evidence of gang affiliation. Finding no error, we affirm.

¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999). After verbal altercations with a group of people, including the victims R.N. and E.D., Urquides engaged in a fight with the victims and several others, took out a knife, cut E.D. on the arm, and stabbed R.N. in the chest. R.N. died of his wounds. Urquides left the scene, but later was arrested and charged with second-degree murder and aggravated assault.

¶3 At trial, Urquides testified and claimed he had acted in self-defense. The jury, however, found him guilty as charged. The trial court sentenced him to enhanced, aggravated, consecutive prison terms totaling thirty-seven years. This appeal followed.

¶4 In the sole issue raised on appeal, Urquides maintains the trial court abused its discretion in precluding evidence that his victims were involved in gang activity. During opening statements, Urquides asserted that R.N. and some of the others in the group he had fought with were members of a particular gang. Two witnesses testified as to gang affiliation, one explaining that R.N. was the leader of the gang. The state objected to the testimony about R.N. on relevancy grounds, but the court overruled the objection "for limited purposes," ordering Urquides to "keep this line of questioning to a minimum."

¶5 The state later filed a motion in limine to preclude further testimony about gang affiliation, arguing any such evidence was irrelevant and, even if not irrelevant, its probative value was outweighed by the danger of prejudice and confusion. The trial court granted the motion, concluding that such testimony was irrelevant and would turn the case into "a gang trial" and require "gang testimony" that could go on for an extended period, particularly as no such evidence had yet been produced.

¶6 Urquides maintains that, by precluding evidence of gang affiliation, the trial court "prevented him from fully presenting his claim of self-defense."2 The state argues Urquides failed to assert this ground below, and we therefore should review solely for fundamental error. As the state points out, Urquides's main argument in favor of admission of gang-affiliation evidence was for impeachment purposes. He argued primarily that, because the victims were part of a gang, "they have an interest in each other to protect each other." But defense counsel also asserted that "as a gang they attacked my client . . . and . . . that's our defense." Even accepting that this argument was sufficient to preserve an argument that the evidence should have been permitted in support of a self-defense theory, however, Urquides's claim fails. Because we cannot say the trial court abused its discretion in precluding the evidence, we find no error, fundamental or otherwise.

¶7 Evidence is relevant when "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." Ariz. R. Evid. 401. Urquides's defense was one of self-defense—that the victims and their group had been the aggressors and he had used a knife because he feared for his life. When a defendant argues self-defense, evidence of the victim's gang membership may be admissible under Rule 404(b), Ariz. R. Evid., "to show that the defendant was justifiably apprehensive of the decedent and knew that the decedent had a violent disposition." See State v. Taylor, 169 Ariz. 121, 124, 817 P.2d 488, 491 (1991); State v. Zamora, 140 Ariz. 338, 341, 681 P.2d 921, 924 (App. 1984). But to support reasonable apprehension by the defendant, there must be evidence that the defendant was aware of the gang affiliation, see State v. Fish, 222 Ariz. 109, ¶¶ 36-37, 213 P.3d 258, 270-71 (App. 2009), and knew the gang to be violent, see Zamora, 140 Ariz. at 341, 681 P.2d at 924. In this case, the record does not show Urquides presented such evidence in support of admission of gang-affiliation evidence.

¶8 At the argument on the state's motion, defense counsel argued that, because the victims and others with them were part of a gang, they would protect one another in terms of telling a consistent story. But he did not assert that membership in the gang made them particularly violent or that Urquides was apprehensive of them because of their gang affiliation. Nor was an offer of proof made either in the form of testimony by Urquides or in the form of expert testimony about gang activity generally or the particular gang in question. See Ariz. R. Evid. 103(a)(2) (requiring offer of proof when ruling excludes evidence). As the court noted, there was no testimony that "this was a gang-related offense or that this was a gang-related activity." In light of the lack of evidence as to how the victims' gang affiliation affected Urquides's mental state, we cannot say the court abused its discretion in excluding further evidence on gang affiliation.3

¶9 For all these reasons, Urquides's convictions and sentences are affirmed.