                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                v.

                      ADOLFO NOEL RUIZ JR.,
                           Appellant.

                     No. 2 CA-CR 2013-0116
                     Filed September 30, 2014


        Appeal from the Superior Court in Cochise County
                        No. CR201200006
           The Honorable Wallace R. Hoggatt, Judge

                  AFFIRMED IN PART;
            VACATED AND REMANDED IN PART


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General
Counsel for Appellee

Joel A. Larson, Cochise County Legal Defender, Bisbee
Counsel for Appellant
                          STATE v. RUIZ
                         Opinion of the Court


                                OPINION

Presiding Judge Miller authored the opinion of the Court, in which
Chief Judge Eckerstrom and Judge Espinosa concurred.


M I L L E R, Presiding Judge:

¶1           Adolfo Ruiz was convicted after a jury trial of two
counts of attempted manslaughter by sudden quarrel or heat of
passion, and one count of aggravated assault with a deadly weapon
or dangerous instrument. This appeal requires us to determine
whether a person commits attempted sudden quarrel or heat of
passion manslaughter if death does not occur, the person knew only
that his conduct would cause “serious physical injury,” and he did
not intend for his conduct to cause death. For the following reasons,
we affirm Ruiz’s aggravated assault conviction and sentence, but
vacate his attempted manslaughter convictions and sentences, and
remand for further proceedings.

                Factual and Procedural Background

¶2             We view the facts in the light most favorable to
sustaining the jury’s verdicts. See State v. Haight-Gyuro, 218 Ariz.
356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In January 2012, Ruiz was
involved in a fist-fight in a bar that began with a shove from M.M.
As he was being escorted outside by C.R., he produced a gun and
fired two shots that struck C.R. Ruiz was then pushed out of the bar
and onto the ground, causing him to drop the gun.                   Ruiz
immediately picked it up and shot M.M. Ruiz testified he was in
fear of his life from multiple persons; further, the bullets that struck
C.R. and M.M. were either warning shots or inadvertent discharges
caused by struggles with other people as they grappled to get the
gun.

¶3         The indictment charged Ruiz with two counts of
attempted second-degree murder. He also was charged with
aggravated assault for each of the shots that struck C.R. and M.M.
The jury found Ruiz guilty of two counts of the lesser-included


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                          STATE v. RUIZ
                         Opinion of the Court

offense of attempted manslaughter, and one count of aggravated
assault against M.M. 1 The jury acquitted Ruiz of two counts of
aggravated assault against C.R. He was sentenced to presumptive,
consecutive, and concurrent prison terms totaling fifteen years.

                     Attempted Manslaughter

¶4            Ruiz does not challenge the sufficiency of the evidence
to support his convictions, but argues the trial court improperly
instructed the jury. He contends the court’s instruction permitted
the jury to find him guilty of attempted manslaughter based only on
conduct intended to cause serious physical injury.              Stated
differently, he maintains the state was relieved of the burden of
proving he had engaged in conduct intended to culminate in death.
Because Ruiz raises this argument for the first time on appeal, we
review for fundamental, prejudicial error. See State v. Henderson, 210
Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005).

Attempted Manslaughter Instruction

¶5          The trial court instructed the jury that if it found Ruiz
not guilty of attempted second-degree murder or if it could not
reach a verdict on that charge, it could consider whether he had
committed attempted manslaughter under A.R.S. § 13-1103(A)(2).
The court defined the latter as follows:

            The crime of manslaughter by sudden
            quarrel or heat of passion requires proof
            that:

            A person      intentionally   killed   another
            person; or

            A person caused the death of another
            person by conduct which the defendant



      1We   presume the jury did not reach a verdict on either count
of attempted second-degree murder because it did not return a
verdict of acquittal.


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                           STATE v. RUIZ
                          Opinion of the Court

             knew would cause           death   or serious
             physical injury; and

             A person acted upon a sudden quarrel or
             heat of passion; and the sudden quarrel or
             heat of passion resulted from adequate
             provocation by the person who was killed.

(Emphasis added.)

¶6           Ruiz relies on State v. Ontiveros, 206 Ariz. 539, 81 P.3d
330 (App. 2003), for the proposition that the requisite mens rea for
attempt to commit manslaughter under § 13-1103(A)(2) is the intent
or belief that one’s conduct will cause death. In Ontiveros, we held
that attempted second-degree murder is not a cognizable offense if
the person does not intend or know 2 that his conduct will cause
death. Id. ¶ 11. We reasoned that a person who does not intend or
know that his conduct will cause death cannot be said to have taken
action “planned to culminate” in death. Id. ¶ 10. Attempted second-
degree murder therefore requires either the intention or the
knowledge that one’s conduct will cause death to the victim. Id.

¶7         Ruiz contends the rationale employed in Ontiveros
should extend to attempted 3 manslaughter, under § 13-1103(A)(2).




      2 In   this context, “know” or “knowingly” means “believes.”
See A.R.S. § 13-105(10)(b). Otherwise, the finder of fact would be
confronted with the conundrum of whether a person can “know” a
fact (i.e., the conduct caused the victim’s death) that is false (i.e., the
victim did not die).
      3The   jury instruction for attempt tracked A.R.S. § 13-1001(A),
stating:

      A person commits attempt if, acting with the kind of
      culpability otherwise required for commission of an
      offense, such person:


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                          STATE v. RUIZ
                         Opinion of the Court

Subsection (A)(2) of that statute explicitly incorporates the elements
of second-degree murder:

             A person commits manslaughter by:

             ....

             Committing second degree murder as
             defined in § 13-1104, subsection A upon a
             sudden quarrel or heat of passion resulting
             from adequate provocation by the victim.

This offense includes a “different circumstance” of sudden quarrel
or heat of passion resulting from adequate provocation by the
victim. Peak v. Acuna, 203 Ariz. 83, ¶ 6, 50 P.3d 833, 834 (2002) (lesser
offense of manslaughter by sudden quarrel/heat of passion includes
all elements of greater offense of second-degree murder plus
different required circumstance). The additional circumstance,
however, does not negate the mandatory elements of second-degree
murder. Therefore, we conclude the rationale employed in Ontiveros
applies to attempted manslaughter under § 13-1103(A)(2).

¶8            The state does not attempt to distinguish Ontiveros.
Rather, it observes in a footnote that attempted manslaughter by
heat of passion or sudden quarrel is a cognizable offense in Arizona,
citing State v. Barnes, 162 Ariz. 92, 781 P.2d 69 (App. 1989). A minor,
passing reference without argument generally is insufficient. See
State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (argument
not developed on appeal waived). In our discretion, however, we
address the implications of Barnes. See State v. Aleman, 210 Ariz. 232,
¶ 10, 109 P.3d 571, 575 (App. 2005).

      Intentionally engages in conduct which would
      constitute an offense if the attendant circumstances
      were as such person believes them to be; or

      Intentionally does or omits to do anything which, under
      the circumstances as such person believes them to be, is
      any step in a course of conduct planned to culminate in
      commission of an offense.


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                         STATE v. RUIZ
                        Opinion of the Court

¶9            In Barnes, the defendant shot the victim at close range
with a rifle, yet he survived. 162 Ariz. at 93, 781 P.2d at 70. Barnes
was convicted of attempted manslaughter pursuant to
§ 13-1103(A)(2). Id. He argued “there is no such crime as attempted
heat of passion or sudden quarrel manslaughter,” relying on State v.
Adams, 155 Ariz. 117, 120-21, 745 P.2d 175, 179-80 (App. 1987), in
which we held the offenses of attempted reckless manslaughter and
attempted negligent homicide are not cognizable offenses in Arizona
because one could not attempt to commit a crime that only required
reckless conduct or criminal negligence and not a specific intent.
Barnes, 162 Ariz. at 93, 781 P.2d at 70. In the alternative, Barnes
argued attempted heat of passion or sudden quarrel manslaughter
required the jury to be instructed that it must find proof of specific
intent to kill, rather than only the intent to shoot the victim. Id. In
rejecting both arguments, the court distinguished Adams on the basis
that, “[w]hat must be ‘intentional’ is the conduct.” Id. The court
tersely concluded that evidence of intentional shooting, knowing
“the shooting would cause death or serious physical injury,” was
sufficient. Id.

¶10           Barnes was not addressed by the court in Ontiveros, nor
has it been cited in any subsequent Arizona opinions. Several out-
of-state cases have cited Barnes where there was evidence of intent to
kill, but in none of these cases was it cited for the proposition that
intent to cause only bodily injury is sufficient to support the offense
of attempted manslaughter. See, e.g., State v. Holbron, 904 P.2d 912,
923 (Haw. 1995); State v. Gutierrez, 172 P.3d 18, 25 (Kan. 2007). In
contrast, Ontiveros has been affirmed within Arizona and cited in a
national treatise on criminal law. See State v. Dickinson, 233 Ariz.
527, ¶ 11, 314 P.3d 1282, 1285 (App. 2013) (attempted second-degree
murder requires intent to kill victim or knowledge conduct would
cause death); 2 Wayne R. LaFave, Substantive Criminal Law § 11.3 (2d
ed. 2013) (on charge of attempted murder not sufficient to show
defendant intended to do serious bodily harm). To the extent Barnes
can be read as standing for the proposition that a jury may be
instructed that the intent to commit serious physical injury is
sufficient proof for attempted manslaughter, the state conceded at
oral argument that Barnes has been overtaken by recent
jurisprudence that more comprehensively addresses the question


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                          STATE v. RUIZ
                         Opinion of the Court

here. We agree and conclude that the instruction erroneously
permitted the jury to consider conduct the defendant may have
intended or believed would cause only serious physical injury.

Fundamental Error Analysis

¶11           To establish fundamental error, a defendant must show
“that the error complained of goes to the foundation of his case,
takes away a right that is essential to his defense, and is of such
magnitude that he could not have received a fair trial.” Henderson,
210 Ariz. 561, ¶ 24, 115 P.3d at 608. This court has previously
determined “that instructing a jury on a non-existent theory of
criminal liability is fundamental error.” State v. James, 231 Ariz. 490,
¶ 13, 297 P.3d 182, 185 (App. 2013); see also Dickinson, 233 Ariz. 527,
¶ 12, 314 P.3d at 1285; Ontiveros, 206 Ariz. 539, ¶ 17, 81 P.3d at 333.
Because the attempted manslaughter instruction misstated the law,
it had the potential to “improperly relieve[] the State of its burden of
proving an element of the offense.” State v. Kemper, 229 Ariz. 105,
¶¶ 5-6, 271 P.3d 484, 486 (App. 2011); see also Ontiveros, 206 Ariz. 539,
¶ 11, 81 P.3d at 332. Thus, the error complained of was fundamental
as it goes to the foundation of the case. Kemper, 229 Ariz. 105,
¶¶ 5-6, 271 P.3d at 486; see also Dickinson, 233 Ariz. 527, ¶ 12, 314
P.3d at 1286.

Prejudice

¶12           Having determined the error was fundamental, we next
examine whether Ruiz has demonstrated he was prejudiced as a
result. See Henderson, 210 Ariz. 561, ¶ 26, 115 P.3d at 608. “Prejudice
is a fact-intensive inquiry, the outcome of which will ‘depend[] upon
the type of error that occurred and the facts of a particular case.’”
Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286, quoting James, 231
Ariz. 490, ¶ 15, 297 P.3d at 186 (alteration in Dickinson). “To prove
prejudice, [Ruiz] must show that a reasonable, properly instructed
jury ‘could have reached a different result.’” Id. ¶ 13, quoting James,
231 Ariz. 490, ¶ 15, 297 P.3d at 186. As part of this analysis, we
consider “the parties’ theories, the evidence received at trial and the
parties’ arguments to the jury.” Id.




                                   7
                          STATE v. RUIZ
                         Opinion of the Court

¶13          At trial, the state maintained that Ruiz intended to kill
both C.R. and M.M. C.R. testified that as he picked Ruiz up to escort
him out of the bar he noticed Ruiz had a gun, “heard flashes,” and
fell to the ground, whereupon he realized he had been shot twice.
M.M. testified that Ruiz picked up the gun, “looked [him] in the eye,
and shot [him],” despite the fact that M.M. had raised his open
hands. Another witness to the shooting testified that Ruiz did not
appear to be aiming at anybody in particular.

¶14          Ruiz admitted at trial that he shot C.R. and M.M., but
asserted a justification defense. Ruiz testified that when he had
attempted to leave the bar, he had been shoved by M.M., and the
confrontation had escalated to blows and wrestling between the
pair. As other individuals at the bar joined the fray, Ruiz feared for
his life and instinctively drew his weapon, firing a “warning shot”
that hit C.R. He testified the gun went off a second time after
someone “tr[ied] to pull it out of [his] hand.” After being thrown on
the floor, Ruiz further explained, his “gun fell out of [his] hand,” he
and M.M. fought over the gun, and M.M. “tried to pull the gun up
out of [Ruiz’s] hand,” which “caus[ed] the gun to fire.”

¶15          The jury is tasked with deciding the facts of the case
and, in so doing, must consider what testimony to accept or what to
reject. See Smethers v. Campion, 210 Ariz. 167, ¶ 19, 108 P.3d 946, 951
(App. 2005) (recognizing standard instruction “[Jury] may accept
everything a witness says, or part of it, or none of it”); see also State
Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 18
(2013). Indeed, the jury was instructed that it “may accept
everything a witness says, or part of it, or none of it.” If portions of
testimony from several different witnesses were accepted, it is
possible the jury may have concluded Ruiz only intended or knew
that his conduct would harm the victims, rather than kill them. See
Ontiveros, 206 Ariz. 539, ¶ 18, 81 P.3d at 334. For instance, the
disparate verdicts on the aggravated assault charges suggest the jury
viewed the testimony differently for each count.

¶16          The state’s closing argument did not alleviate the error
in the instruction. The state argued Ruiz had acted unreasonably
and told the jury, “[I]f [Ruiz] acted recklessly, your work is done.”
In its rebuttal closing, the state once again told the jury, “[Y]ou[r]

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                         STATE v. RUIZ
                        Opinion of the Court

work is done if you find that Adolfo Ruiz was unreasonable, that he
was provocative, or that he was reckless. You’re finished then if you
find any of those things with respect to him.” The culpable mental
state of “recklessness,” however, is less than the intentional conduct
required for an attempted manslaughter conviction. 4 See Adams, 155
Ariz. at 119-20, 745 P.2d at 177-78 (concluding recklessness does not
require any intent to achieve result; there can be no such criminal
offense as attempt to achieve unintended result). Thus, the state
likely compounded the error in the instruction by arguing to the jury
that it could find Ruiz guilty of attempted manslaughter without
finding he had intended or knew his actions would cause the death
of C.R. and M.M. See id. at 120, 745 P.2d at 178 (concluding
attempted reckless manslaughter is not cognizable offense in
Arizona).

¶17           Although the record contains sufficient evidence
establishing Ruiz had intended or knew his conduct could cause the
deaths of C.R. and M.M., Ruiz has shown that the jury could have
based its guilty verdict only on a finding that he had intended or
knew that his conduct would cause serious physical injury.
Moreover, we cannot say beyond a reasonable doubt that the jury
would have convicted Ruiz without the erroneous jury instruction.
See State v. Amaya-Ruiz, 166 Ariz. 152, 173, 800 P.2d 1260, 1281 (1990)
(erroneous jury instruction not harmless error if defendant could be
convicted without proof beyond reasonable doubt of requisite
culpable mental state). Ruiz’s attempted manslaughter convictions
therefore cannot stand. See Ontiveros, 206 Ariz. 539, ¶¶ 19-20, 81
P.3d at 334.

                         Aggravated Assault

¶18           Ruiz raises three interrelated arguments involving two
justification defense jury instructions as well as the trial court’s

      4 The jury was instructed on the definition of “recklessly,”
which tracked A.R.S. § 13-105(10)(c), and stated in relevant part:
“‘Recklessly’ . . . means that a defendant is aware of and consciously
disregards a substantial and unjustifiable risk that the result will
occur or that the circumstance exists.”


                                  9
                           STATE v. RUIZ
                          Opinion of the Court

decision to not further instruct the jury on provocation. Although
neither party relates its arguments to Ruiz’s lone aggravated assault
conviction, the underlying factual predicate for Ruiz’s attempted
manslaughter convictions is nearly identical to that for Ruiz’s
aggravated assault conviction. Having already determined Ruiz’s
attempted manslaughter convictions must be vacated, we therefore
address the merits of Ruiz’s remaining arguments only as they relate
to his aggravated assault conviction.5

Unavailability of Justification Instruction

¶19           Ruiz first argues the trial court abused its discretion in
instructing the jury pursuant to A.R.S. § 13-401, which bars the use
of certain defenses to charged crimes, because it is not a statute upon
which jury instructions have been based. The state concedes the
court erred in instructing on § 13-401 but contends the error was
harmless. We accept the state’s concession and therefore review the
court’s instruction for harmless error. See State v. Bible, 175 Ariz. 549,
588, 858 P.2d 1152, 1191 (1993). An error is harmless if the state can
establish beyond a reasonable doubt, “‘in light of all of the
evidence,’” that the error did not “contribute to or affect the
verdict.” State v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236
(2009), quoting Bible, 179 Ariz. at 588, 858 P.2d at 1191.

¶20            The trial court instructed the jury on the unavailability
of a justification defense with language that tracks § 13-401(A):

             Even though a person is justified under this
             chapter in threatening or using physical
             force or deadly physical force against
             another, if in doing so such person
             recklessly injures or kills an innocent third
             person, the justification afforded by this
             chapter is unavailable in a prosecution for
             the reckless injury or killing of the innocent
             third person.


      5To the extent Ruiz asserts a justification defense on remand,
the substantive issues and their resolution will be applicable.


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                          STATE v. RUIZ
                         Opinion of the Court

The instruction does not appear in the Revised Arizona Jury
Instructions and, as both parties agree, was taken from a statute
upon which jury instructions are not based. That is because, as its
plain language indicates, § 13-401 is an exception to justification
defenses where an innocent third party has been injured or killed
due to a defendant’s reckless conduct. No jury instruction is
necessary if the exception applies.

¶21          Here, Ruiz’s sole aggravated assault conviction was
committed upon M.M., who was involved in the initial altercation
with Ruiz that then devolved into the larger fracas. As Ruiz
concedes, there was no argument at trial that M.M. was an innocent
third person as contemplated by § 13-401. Accordingly, in light of
all the evidence, we conclude the § 13-401 jury instruction did not
contribute to or affect the aggravated assault verdict. Valverde, 220
Ariz. 582, ¶ 11, 208 P.3d at 236. Thus, the error was harmless.

Decision to Not Further Instruct Jury

¶22         Ruiz next argues the trial court erred when it declined
to give the jury additional instruction on the relationship of
provocation to self-defense.      Because Ruiz did not raise the
argument below, we review for fundamental, prejudicial error.
Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.

¶23         During deliberations, the jury sent the trial court a note
which read:

            Regarding self-defense, if the defendant
            has justification in his mind and under the
            law to use the physical force, is it still
            considered not justified if the defendant
            provoked the other’s use of physical force
            against the defendant? Is the defendant
            provoking this problem if he was provoked
            by others first?

After a brief discussion, the court and the parties agreed to refer the
jury back to the instructions already given.




                                  11
                          STATE v. RUIZ
                         Opinion of the Court

¶24          The trial court in its discretion may decide whether to
further instruct the jury on a matter. See State v. Stevens, 184 Ariz.
411, 413, 909 P.2d 478, 480 (App. 1995). Thus, an adequate
instruction permits the court to decline further instructions, instead
referring the jury back to the instructions. See State v. Ramirez, 178
Ariz. 116, 126, 871 P.2d 237, 247 (1994). The justification instruction
here correctly stated the law regarding provocation. Accordingly,
we cannot say the court abused its discretion in referring the jury
back to it. See id. at 126-27, 871 P.2d at 247-48; Stevens, 184 Ariz. at
413, 909 P.2d at 480.

Defense Justification Jury Instruction

¶25         Lastly, Ruiz argues the trial court omitted the word
“safely” when instructing pursuant to A.R.S. § 13-404(B)(3)(a).
Because Ruiz again failed to object to the instruction below, we
review for fundamental, prejudicial error. Henderson, 210 Ariz. 561,
¶¶ 19-20, 115 P.3d at 607.

¶26          The basic justification defense statute, § 13-404, contains
subsection B, which sets forth when the threat or use of physical
force against another is not justified. Subsection 3 provides that the
defense is unavailable:

             If the person provoked the other’s use or
             attempted use of unlawful physical force,
             unless:

             (a) The person withdraws from the
             encounter or clearly communicates to the
             other his intent to do so reasonably
             believing he cannot safely withdraw from
             the encounter; and

             (b) The other nevertheless continues or
             attempts to use unlawful physical force
             against the person.

(Emphasis added). Ruiz contends that the omission of “safely” is
fundamental error because it lessened the state’s burden to prove
the absence of justification.

                                  12
                          STATE v. RUIZ
                         Opinion of the Court

¶27          Assuming the omission of the word “safely” was
fundamental error, Ruiz has failed to demonstrate that he was
prejudiced as a result. At trial, no witness testified that Ruiz either
attempted to withdraw from the encounter or that he communicated
an intent to withdraw, believing he could do so safely. See A.R.S. §
13-404(B)(3). Nor did either party suggest during closing arguments
that the jury needed to consider whether Ruiz withdrew from the
scene or that he communicated his intent to do so. Upon
examination of the record, we do not conclude that a reasonable
jury, properly instructed would have reached a different verdict.
Accordingly, Ruiz has not established the omission of the word
“safely” from the justification defense instruction prejudiced him.

                              Disposition

¶28           For the reasons stated above, we affirm Ruiz’s
conviction and sentence for aggravated assault, count three. We
otherwise vacate Ruiz’s convictions and sentences for attempted
manslaughter, counts four and five, and remand this matter to the
trial court for a new trial on these counts. In view of this disposition,
we do not reach the restitution issue raised by Ruiz.




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