                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Appellee,

                                   v.

                    ANTAJUAN STEWART CARSON JR.,
                             Appellant.

                           No. CR-17-0116-PR
                         Filed February 27, 2018


            Appeal from the Superior Court in Pima County
          The Honorable Teresa A. Godoy, Judge Pro Tempore
                        No. CR20134987-001
                   REVERSED AND REMANDED

             Opinion of the Court of Appeals, Division Two
                         242 Ariz. 6 (App. 2017)
                              VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Adele G. Ponce (argued),
Assistant Attorney General, Phoenix, Attorneys for State of Arizona

Joel Feinman, Pima County Public Defender, Erin K. Sutherland (argued),
Assistant Public Defender, Tucson, Attorneys for Antajuan Stewart Carson,
Jr.
                             STATE V. CARSON
                            Opinion of the Court


JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER and JUSTICES
BRUTINEL, BOLICK, GOULD, and LOPEZ joined.

JUSTICE TIMMER, opinion of the Court:

¶1             Our courts have consistently prohibited a defendant from
simultaneously claiming self-defense and asserting a misidentification
defense. We now disavow that approach. We hold that if some evidence
supports a finding of self-defense, the prosecution must prove its absence,
and the trial court must give a requested self-defense jury instruction, even
when the defendant asserts a misidentification defense.

                              BACKGROUND

¶2             We view the evidence in the light most favorable to a
defendant’s request for a self-defense instruction. See State v. King, 225 Ariz.
87, 90 ¶ 13 (2010).

¶3           One October night in 2013, Antajuan Carson and victims S.B.,
J.M., and B.C. attended a house party in Tucson. There was “bad blood”
between Carson and J.M., and they unfortunately crossed paths. The two
men engaged in a prolonged “fight” inside the house that involved “a
whole bunch of people,” including S.B., who “had a little conflict going
[with Carson],” and lasted five or ten minutes before being broken up.
Carson displayed a gun at some point during this confrontation.

¶4             The fight soon resumed outside in what witnesses described
as chaotic conditions (“A whole bunch of people were running and arguing,
yelling”; “[E]verybody just ran outside, and everybody was pushing”) until
several people, including J.M. and S.B., “jumped” Carson, hitting and
kicking him as he was on the ground. According to one witness, Carson
pulled out a gun and “started like swinging it to [J.M. and S.B.],” who
responded by physically fighting Carson. Someone yelled, “He has a gun,”
and people began to run away. Shots were fired, and J.M. and S.B. were
shot and killed. B.C. was shot but survived. The gun was never found. But
police discovered a bloodied knife on the ground near S.B.’s body at the end
of a trail of blood drops, and a second bloodied knife was found tucked



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                            Opinion of the Court


inside S.B.’s belt. Neither was tested for fingerprints or DNA. Carson fled
and was later arrested in Michigan.

¶5            The State charged Carson with two counts of second degree
murder and two counts of aggravated assault. During the subsequent jury
trial, Carson did not testify. His principal defense was that he was not the
shooter. But Carson also requested a self-defense instruction. The trial
court denied the request, reasoning “the court legally cannot give a self-
defense instruction” because Carson denied he had shot the victims. The
jury found Carson guilty on all counts, and the court imposed sentences.

¶6            The court of appeals reversed the murder convictions and
sentences and remanded for a new trial because the trial court had
erroneously refused to give a self-defense instruction as to those two
victims. State v. Carson, 242 Ariz. 6, 12 ¶ 23 (App. 2017). It affirmed the
aggravated assault convictions, however, concluding that insufficient
evidence supported giving a self-defense instruction regarding Carson’s
shooting of B.C. Id. ¶ 21.

¶7             We granted review of Carson’s petition and the State’s cross-
petition to decide whether a defendant is entitled to a self-defense
instruction while also asserting a misidentification defense, a recurring
issue of statewide importance. We have jurisdiction pursuant to article 6,
section 5(3), of the Arizona Constitution and A.R.S. § 12-120.24.

                               DISCUSSION

              I.   Simultaneously asserting misidentification and self-
                   defense

¶8            We review de novo as a question of law whether a self-
defense instruction is available to a defendant who asserts a
misidentification defense. See State v. Rushing, 243 Ariz. 212, 221 ¶ 36 (2017).

¶9           A person is justified in using physical force against another,
and does not commit a crime, “when and to the extent a reasonable person
would believe that physical force is immediately necessary to protect
himself against the other’s use or attempted use of unlawful physical force.”
A.R.S. §§ 13-205(A) -404(A). Similarly, deadly force is justifiably used if


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                              STATE V. CARSON
                             Opinion of the Court


§ 13-404 is satisfied and “a reasonable person would believe that deadly
physical force is immediately necessary to protect himself against the
other’s use or attempted use of unlawful deadly physical force.” Id. § 13-
405(A). These provisions use objective standards that depend on the beliefs
of a “reasonable person” in the defendant’s circumstances rather than the
defendant’s subjective beliefs. See King, 225 Ariz. at 90 ¶¶ 11–12. “A
defendant is entitled to a self-defense instruction if the record contains the
‘slightest evidence’ that he acted in self defense.” Id. ¶ 14.

¶10            For many years, Arizona courts have stated that a defendant
may not simultaneously deny physically injuring a victim and claim self-
defense. See, e.g., State v. Plew, 150 Ariz. 75, 78 (1986) (“A defendant who
denies shooting the victim may not thereafter claim self-defense,”); State v.
Williams, 132 Ariz. 153, 156 (1982) (“[S]imple logic demands that a
‘defendant who disclaims any assaultive behavior on his part is not entitled
to a self defense instruction.’” (quoting State v. Miller, 129 Ariz. 42, 43 (App.
1981))); State v. Ruggiero, 211 Ariz. 262, 265 ¶ 11 (App. 2005) (“A defendant
who disclaims any assaultive behavior on his part is not entitled to a self
defense instruction.”(quoting Miller, 129 Ariz. at 43)); State v. Gilfillan,
196 Ariz. 396, 407 ¶ 40 (App. 2000) (“Given that the defendant denied
committing the act with which he was charged, it follows that he could not
argue self-defense.”); State v. Dixon, 15 Ariz. App. 62, 64 (1971) (“It is
evident that appellant had completely denied shooting the victim and
therefore could not rely on a self-defense instruction.”). We now disavow
these holdings.

¶11             Continuing to adhere to the Plew line of cases would
contradict the legislature’s intent about what constitutes criminal conduct.
In 2006, the legislature amended Arizona’s statutes to declare that actions
taken in self-defense transform conduct that would otherwise be criminal
into legally permissible conduct.           See A.R.S. § 13-205(A) (2006)
(“Justification defenses . . . are not affirmative defenses. Justification
defenses describe conduct that, if not justified, would constitute an offense
but, if justified, does not constitute criminal or wrongful conduct.”); see also
id. § 13-103(B) (2006) (describing an “affirmative defense” as a defense that
“excuse[s]” criminal conduct and stating that such defenses do not include
justification defenses). Once a defendant identifies evidence that a
reasonable person would have believed that the use of physical force or
deadly physical force was necessary as self-defense under §§ 13-404(A) or

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                              STATE V. CARSON
                             Opinion of the Court


–405(A), “the state must prove beyond a reasonable doubt that the
defendant did not act with justification.” A.R.S. § 13-205(A). In effect, once
sufficient self-defense evidence is admitted, the absence of self-defense
becomes an additional element the state must prove to convict. Precluding
a defendant who claims misidentification from also asserting self-defense
when even the slightest evidence supports his assertion would change the
state’s burden, thereby contravening the legislature’s intent about what
conduct is criminal. Cf. State v. Holle, 240 Ariz. 300, 307 ¶ 36 (2016) (agreeing
that courts cannot add elements to crimes defined by the legislature); State
v. Mott, 187 Ariz. 536, 541 (1997) (recognizing that the legislature, not this
Court, is responsible for promulgating the criminal law).

¶12            Relatedly, if the evidence supports a self-defense finding but
the defendant must admit to being the perpetrator, or at least not deny it,
to trigger the prosecution’s burden to disprove self-defense, the defendant
effectively must give up his right to hold the prosecution to its proof of all
elements. See United States v. Demma, 523 F.2d 981, 986 (9th Cir. 1975)
(concluding that not allowing inconsistent defenses will lead to the
defendant “yielding . . . his right to have the Government prove the
elements of the crime beyond a reasonable doubt”).

¶13           We are not persuaded by the State’s argument that we should
continue to adhere to Plew and like cases because simultaneously
permitting misidentification and justification defenses would perpetuate at
least one “lie,” thereby “confusing” a jury and undermining its truth-
finding function. Just as juries sift through incompatible witness accounts
to unearth the truth, they can sort the truth of conflicting defenses. Cf. State
v. Wall, 212 Ariz. 1, 6 ¶ 30 (2006) (finding evidence sufficient for a lesser-
included offense instruction where the “facts were such that the jury could
reasonably believe portions of the [witness’s] story and portions of the
defendant’s story”); State v. Dugan, 125 Ariz. 194, 196 (1980) (allowing an
instruction for a lesser-included offense where the jury may weigh
contradictory testimonies and believe parts of each); State v. Sims, 99 Ariz.
302, 311 (1965) (“These asserted contradictions and discrepancies are of
such a nature as can and usually do occur in the course of most trials where
much of the evidence is dependent upon the recollection of witnesses.”).

¶14          And as the State concedes here, a defendant could assert self-
defense while simultaneously arguing that the prosecution had failed to

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                             STATE V. CARSON
                            Opinion of the Court


prove he was the perpetrator. Cf. Ruggiero, 211 Ariz. at 265 ¶ 11 (noting that
justification instructions were warranted in some cases “because the
defendant, although not admitting assaultive behavior, did not directly
deny it”). If juries are not confused in that circumstance, we do not see why
they would be when a defendant affirmatively asserts a misidentification
defense. Other jurisdictions have permitted inconsistent defenses without
reported turmoil. See, e.g., Demma, 523 F.2d at 985 n.6 (collecting cases); see
also id. at 985 (“The rule in favor of inconsistent defenses reflects the belief
of modern criminal jurisprudence that a criminal defendant should be
accorded every reasonable protection in defending himself against
governmental prosecution.”); State v. McPhaul, 174 Ariz. 561, 562 (App.
1992) (rejecting argument that a defendant who testified that he did not
commit a particular offense is not entitled to a lesser-included-offense
instruction, reasoning that there is “nothing inconsistent, illogical or
improper about a defendant saying, ‘I was not the person who committed
the robbery, but even if you do not believe me, the evidence shows that
whoever did commit it was not armed’”).

¶15           The State also argues we should treat self-defense like the
entrapment affirmative defense, which precludes simultaneous assertion of
a misidentification defense. See A.R.S. § 13-206(A) (“To claim entrapment,
the person must admit by the person’s testimony or other evidence the
substantial elements of the offense charged.”). This preclusion originated
in the common law, and the legislature codified it. See id.; State v. Gray, 239
Ariz. 475, 477–78 ¶¶ 8–14 (2016) (tracing history of § 13-206(A)). But the
legislature has not codified the holdings in Plew and like cases, and we are
free to re-examine them.

¶16            We conclude that if the slightest evidence supports a finding
of self-defense, the prosecution must prove its absence, even if the
defendant asserts a misidentification defense. And if the case is tried to a
jury, the trial court must give a self-defense instruction, if requested and
supported by some evidence.

             II. Need for self-defense jury instruction here

¶17          We review a trial court’s refusal to instruct on self-defense for
an abuse of discretion, viewing the evidence in the light most favorable to
the defendant. See King, 225 Ariz. at 90 ¶ 13.

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                             STATE V. CARSON
                            Opinion of the Court


¶18            As noted above, the “slightest evidence” that a defendant
acted in self-defense entitles him to a self-defense instruction. Id. ¶ 14. The
State argues that this threshold is unmet here because a reasonable person
in Carson’s circumstance would not have believed that “deadly physical
force [was] immediately necessary to protect himself” against the “use or
attempted use of unlawful deadly physical force” by any victim. See A.R.S.
§ 13-405. It points to substantial evidence that Carson did not act in self-
defense. For example, only Carson was seen with a weapon during the
fight, and the wounds suffered by J.M. and S.B., as well as the location of
their bodies, suggest they were shot as they ran from Carson. Also, no one
testified that B.C. attacked Carson and, although a gun was later found in
the car that transported B.C. to a hospital, no evidence suggested he
wielded it during the party.

¶19             The State misapprehends the amount of evidence needed to
support a self-defense instruction by effectively arguing that Carson was
required to prove all elements of self-defense to receive an instruction. The
“slightest evidence” standard presents a low threshold. King, 225 Ariz. at
90 ¶ 15. To cross it, the defendant need only show some evidence of “a
hostile demonstration, which may be reasonably regarded as placing the
accused apparently in imminent danger of losing her life or sustaining great
bodily harm.” Id. (quoting State v. Lujan, 136 Ariz. 102, 104 (1983)); see also
Lujan, 136 Ariz. at 104 (stating that a “hostile demonstration” is “some
outward act” that the “defendant perceives to be immediately life-
threatening”). The defendant is not required to introduce evidence about
each element of self-defense. King, 225 Ariz. at 90 ¶ 14. If the defendant
shows evidence that he acted in response to a “hostile demonstration,” he
is entitled to a self-defense jury instruction. Id.

¶20           At least the slightest evidence exists that Carson shot all three
victims in response to a “hostile demonstration” and therefore acted in self-
defense. Carson brandished a gun during the fight that took place inside
the house. Nevertheless, this did not dissuade J.M., S.B., and others from
“jumping” Carson outside and then punching and kicking him while he
was on the ground. Circumstantial evidence supports a finding that S.B.
used one or both knives to stab at least one person during the fight and
wielded one at the time he was shot. Cf. State v. Stuard, 176 Ariz. 589, 603
(1993) (“Arizona law makes no distinction between circumstantial and
direct evidence.”). While Carson was on the ground, B.C. entered the fray.

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                              STATE V. CARSON
                             Opinion of the Court


Several individuals simultaneously hitting and kicking, at least one of
whom was visibly armed with a knife, was undoubtedly a “hostile
demonstration.” Cf. King, 225 Ariz. at 90 ¶ 16 (concluding that a self-defense
instruction was warranted where the defendant “acted in response to being
hit in the head by a two-liter bottle of water thrown by the victim,” because
“[t]he thrown bottle suffices to meet the ‘slightest evidence’ standard
. . . .”); Everett v. State, 88 Ariz. 293, 298 (1960) (stating that victim made a
“hostile demonstration” by following the defendant closely, placing his
hand in a pocket, and threatening to harm the defendant). The burden then
shifted to the prosecution to disprove self-defense by, for example, showing
that a reasonable person in Carson’s position would not have believed that
deadly physical force was immediately necessary at the time he shot the
victims because they were retreating. See A.R.S. §§ 13-205(A), -405; State v.
Powers, 117 Ariz. 220, 227 (1977) (“After contact has been broken, one cannot
pursue and kill merely because he was once in fear of great bodily harm.”).

¶21            We disagree with the court of appeals majority and the State
that whether Carson shot B.C. in self-defense depended on evidence that
B.C. had threatened Carson with the gun later retrieved by police. See
Carson, 242 Ariz. at 11 ¶¶ 18–19. To meet the “slightest evidence” standard,
Carson did not have to show that B.C. in fact assaulted or threatened him.
Carson only had to identify some evidence that a reasonable person in his
place would have believed that B.C. would use or attempt to use deadly
physical force against him. Cf. State v. Grannis, 183 Ariz. 52, 60 (1995)
(stating that “[u]nder A.R.S. §§ 13-404 and -405, apparent deadly force can
be met with deadly force, so long as defendant’s belief as to apparent
deadly force is a reasonable one” and “actual danger is not required”),
disapproved on other grounds, King, 225 Ariz. at 90 ¶ 12. A mistaken belief
can be a reasonable one. See A.R.S. § 13-204(A)(2) (“[A] mistaken belief as
to a matter of fact does not relieve a person of criminal liability unless . . .
[i]t supports a defense of justification.”); State v. Lamar, 144 Ariz. 490, 497
(App. 1984) (recognizing that “mistake of fact” is contemplated in the
justification instruction because it is based on what a reasonable person
would do in the situation).

¶22            B.C.’s presence in the scrum surrounding Carson as he was
punched and kicked permitted a reasonable person in Carson’s
circumstance to believe that B.C. was one of his assailants. Although B.C.
testified that he was present only to pull S.B. from the fight, someone in

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                             STATE V. CARSON
                            Opinion of the Court


Carson’s position—on the ground, surrounded, being punched and kicked,
on a dark street as people screamed—may not have accurately perceived
B.C.’s intent. And the jury could have disbelieved B.C. about his motive for
joining in. Cf. State v. Almeida, 238 Ariz. 77, 80 ¶ 10 (App. 2015) (allowing
justification instruction where defendant testified that victim was the
aggressor even though State had evidence to the contrary). We agree with
the partial dissent below that sufficient evidence supported Carson’s
request for a jury instruction on self-defense concerning the aggravated
assault charges. See Carson, 242 Ariz. at 15 ¶ 34 (Eckerstrom, C.J.,
concurring in part and dissenting in part).

¶23            In sum, viewed in the light most favorable to Carson, at least
the “slightest evidence” existed that he shot all three victims in self-defense.
The trial court therefore erred by refusing to instruct the jury on self-
defense.
                               CONCLUSION

¶24          We vacate the court of appeals’ opinion, reverse Carson’s
convictions and sentences, and remand the case for a new trial.




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