                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  GORDON ALLEN BENSON, Appellant.

                             No. 1 CA-CR 13-0454
                              FILED 09-18-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-140907-001
                 The Honorable Bruce R. Cohen, Judge

                      REVERSED AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                            STATE v. BENSON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1            Gordon Allen Benson appeals his conviction for
manslaughter, arguing the superior court erred by refusing to instruct the
jury on the crime-prevention defense under Arizona Revised Statutes
(“A.R.S.”) § 13-411. We agree and therefore reverse Benson’s conviction
and remand for a new trial.

                FACTS AND PROCEDURAL HISTORY1

¶2            Benson fatally stabbed F.B. after being awakened by F.B.
“ferocious[ly]” banging on, and then bursting through, the door to the room
Benson’s girlfriend rented from F.B., yelling “mother fucker,” and
screaming for Benson to get out. Benson claimed self-defense and testified
he was “terrified” that F.B., who was larger and younger than him, would
seriously injure or kill him if he did not “stop him.” A “very high” level of
methamphetamine was present in F.B.’s bloodstream at the time of his
death — a level the State’s toxicologist testified could cause someone to
engage in a violent outburst.

¶3            The jury convicted Benson of manslaughter as a lesser-
included offense of the charged crime of second-degree murder and found
it to be a dangerous offense. The court sentenced Benson to a mitigated
term of eight years in prison. Benson filed a timely notice of appeal. We
have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 13-4031, and
13-4033(A).

                              DISCUSSION

¶4            The trial court instructed the jury regarding the use of
physical force and deadly physical force in self-defense pursuant to A.R.S.
§§ 13-404 and 13-405 and specifically instructed jurors that a person “may

1      We view the evidence in the light most favorable to Benson — the
proponent of the jury instruction. See State v. King, 225 Ariz. 87, 90, ¶ 13,
235 P.3d 240, 243 (2010).


                                     2
                             STATE v. BENSON
                            Decision of the Court

use deadly physical force in self defense only to protect against another’s
use or apparent, attempted use or threatened use of deadly physical force,”
if and to the extent a reasonable person in his situation would have believed
such force was immediately necessary for self-defense. The court declined
to instruct on the crime-prevention defense under A.R.S. § 13-411, which
offers justification for the use of “both physical force and deadly physical
force against another to the extent the person reasonably believes physical
force or deadly physical force is immediately necessary to prevent the other
person’s commission of” enumerated offenses, including aggravated
assault causing serious physical injury. A.R.S. § 13-411(A). The court
reasoned that the self-defense instructions adequately covered Benson’s
defense.

¶5            The State does not contend the crime-prevention instruction
was legally unavailable to Benson. Indeed, it acknowledges that 2006
amendments to A.R.S. § 13-411 broadened the statute’s application and
concedes Benson “arguably” had a right to be in F.B.’s home as a guest of a
resident. See A.R.S. § 13-411(D) (“This section includes the use or
threatened use of physical force or deadly physical force in a person’s home,
residence, place of business, land the person owns or leases, conveyance of
any kind, or any other place in this state where a person has a right to be.”)
(emphasis added). The State’s position in this appeal is that the trial
evidence did not support a crime-prevention instruction and, to the extent
we conclude otherwise, the State asserts any error in refusing the
instruction was harmless.

¶6            We review the refusal to give a jury instruction for abuse of
discretion. State ex rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8, 123 P.3d
662, 665 (2005). A defendant is entitled to a crime-prevention instruction if
it is supported by the “slightest evidence.” State v. Korzep, 165 Ariz. 490,
494, 799 P.2d 831, 835 (1990).

¶7            Benson testified that he believed F.B. was going to kill or
severely injure him if he did not take immediate action to stop him. He told
jurors he feared he would have his “head beaten” or “tore off or something
stuck through my eye” and that F.B. “was just going to hurt me until there
was nothing, I mean until he couldn’t.” Benson’s testimony, coupled with
evidence about the high level of methamphetamine in F.B.’s system, was
sufficient to supply the “slightest evidence” warranting the crime-
prevention instruction. See State v. Hussain, 189 Ariz. 336, 338, 942 P.2d
1168, 1170 (App. 1997) (holding defendant’s version of events provided the
requisite “slightest evidence” to support crime-prevention defense
instruction).


                                       3
                             STATE v. BENSON
                            Decision of the Court

¶8            According to the State, Benson’s belief F.B. was going to kill
or severely injure him was unreasonable. But whether that belief was
reasonable or not was a question for the jury to resolve in determining
whether the conduct was justified. See A.R.S. § 13-411(A) and (C); State v.
King, 225 Ariz. 87, 91, ¶ 18, 235 P.3d 240, 244 (2010) (evidence defendant
acted in response to being hit in head by bottle thrown by victim entitled
him to self-defense instruction in murder trial; issue of whether response
was proportionate to threat was for the jury).

¶9             We are also unpersuaded by the State’s argument that the
failure to instruct on the crime-prevention defense was harmless error. An
error is harmless if the State demonstrates, beyond a reasonable doubt, that
the error did not contribute to or affect the verdict. See State v. Henderson,
210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005).

¶10             A.R.S. § 13–411 offers a defendant broader protection than
A.R.S. §§ 13-404 and 13-405. See State v. Garfield, 208 Ariz. 275, 279, ¶ 15, 92
P.3d 905, 909 (App. 2004). “[T]he only limitation on the use of deadly force
under § 13–411 is the reasonableness of the response,” whereas “the other
justification defenses require an immediate threat to personal safety before
deadly force may be used.” Korzep, 165 Ariz. at 492, 799 P.2d at 833; see also
Hussain, 189 Ariz. at 339, 942 P.2d at 1171 (A.R.S. § 13-411 “permits a person
to employ deadly physical force ‘if and to the extent the person reasonably
believes [it] is immediately necessary’ to prevent the commission of any of
several enumerated crimes . . . rather than only in response to another
person’s use or attempted use of unlawful deadly physical force.”).
Additionally, A.R.S. § 13-411(C) establishes a presumption that a person
acted reasonably if he acted “to prevent what the person reasonably
believes is the imminent or actual commission” of enumerated crimes,
including aggravated assault. No such presumption exists under §§ 13-404
and 13-405.

¶11            The State contends the presumption established by
§ 13-411(C) has essentially been rendered meaningless by statutory changes
that now place the burden on the State to prove beyond a reasonable doubt
that a defendant did not act with justification. See A.R.S. § 13-205. But as
noted supra, the protections of § 13-411 extend beyond this presumption.
Moreover, even after amending A.R.S. § 13-205(A), the legislature chose to
retain language specifically stating that “[t]his section does not affect the
presumption contained in § 13-411, subsection C.” A.R.S. § 13-205(B). See,
e.g., Tucson v. Clear Channel Outdoor, 209 Ariz. 544, 553, 105 P.3d 1163, 1172
(2005) (courts do not interpret statutes to contain useless provisions unless



                                       4
                             STATE v. BENSON
                            Decision of the Court

no other construction is possible); Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80
P.3d 269, 271 (2003) (courts must give effect to each word of the statute).

¶12           We cannot say beyond a reasonable doubt that the protections
offered by § 13-411 would not have caused a jury properly instructed about
the crime-prevention defense to conclude that Benson was justified in
stabbing F.B. to prevent an aggravated assault. The State has not carried its
burden of establishing harmless error.

                               CONCLUSION

¶13         For the foregoing reasons, we reverse Benson’s conviction
and remand for a new trial.




                                 :gsh




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