                            IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                               v.

                     ANDY DANIEL ALMEIDA,
                          Appellant.

                     No. 2 CA-CR 2014-0267
                      Filed August 19, 2015


         Appeal from the Superior Court in Pima County
                      No. CR20123108001
            The Honorable Deborah Bernini, Judge

                REVERSED AND REMANDED


                           COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee

Steven R. Sonenberg, Interim Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
                         STATE v. ALMEIDA
                         Opinion of the Court



                              OPINION

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


E C K E R S T R O M, Chief Judge:

¶1          Following a jury trial, appellant Andy Almeida was
convicted of aggravated assault with a deadly weapon and
sentenced to a five-year term of imprisonment. On appeal, he
contends the trial court committed reversible error by denying his
requested jury instruction on the crime-prevention justification
afforded by A.R.S. § 13-411.1 We agree and therefore reverse his
conviction. Our disposition makes it unnecessary to address
Almeida’s additional argument concerning his absence from part of
the trial.

                Factual and Procedural Background

¶2           When a trial court refuses a jury instruction, we view
the evidence on appeal in the light most favorable to the proponent
of the instruction. See State v. Nottingham, 231 Ariz. 21, ¶ 14, 289
P.3d 949, 954 (App. 2012). Almeida’s trial concerned an incident of
“road rage” and largely focused on the disputed question of who
was the aggressor. The victim2 was driving by himself at the time of


      1Unless  otherwise indicated, we cite the current versions of all
statutes referred to in this opinion, which have not changed in
material part since July 7, 2012, the date of the alleged offense.
      2 We     use the term “victim” in conformity with the other
driver’s status, as set forth in the charges against Almeida, pursuant
to the Victims’ Bill of Rights and implementing laws. Ariz. Const.
art. II, § 2.1(C); A.R.S. §§ 13-4401(19), 13-4402(A). In so doing, we do
not presuppose any factual conclusion about the competing versions
of events.


                                   2
                        STATE v. ALMEIDA
                        Opinion of the Court

the encounter. Almeida was driving a car that included his fiancée
and their four-year-old son.

¶3           The victim testified he became upset when Almeida
made a turn that cut him off. The victim slammed on his brakes and
honked his horn. According to Almeida’s fiancée, the victim then
began “tailgating” their car. As he drove beside it, the victim waved
a gun in the air, causing the fiancée to become scared for herself and
for her child, who was in the backseat. She told Almeida that the
victim had a gun.

¶4          Less than thirty seconds after the victim had brandished
the weapon, he pulled up to the passenger’s side of Almeida’s
vehicle at a stop light. Almeida then stepped out of his car and
stood beside it while holding his own gun. Once the light turned
green, he got back in and drove away. The victim subsequently
chased Almeida’s vehicle and ran two red lights during the pursuit.

¶5           While still following Almeida, the victim called 9-1-1 to
report the vehicle to the police. A police dispatcher urged the victim
to cease his pursuit, which the victim did not immediately do. The
dispatcher then repeatedly instructed the victim to stay at a
designated area in a shopping center so that a police officer could
make contact with him there. The victim did not do so, instead
going to a different part of the shopping center before returning to
meet with a waiting officer. When the officer searched the victim’s
vehicle, he did not discover any weapon, and the victim denied
having one.

¶6           The trial court instructed the jury on self-defense,
defense of others, and the defensive display of a firearm. The court
denied Almeida’s request for an instruction on the justification of
crime prevention under § 13-411. After sentencing, Almeida filed a
delayed notice of appeal with the trial court’s permission pursuant
to Rules 31.3 and 32.1(f), Ariz. R. Crim. P. We have jurisdiction over
his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-
4033(A)(1).




                                  3
                         STATE v. ALMEIDA
                         Opinion of the Court

                              Discussion

¶7           The instruction requested here correctly set forth the
essential components of the crime-prevention justification provided
by § 13-411. The instruction informed the jury that the defendant’s
threat or use of physical force or deadly physical force was justified
if and to the extent that the defendant reasonably believed it was
immediately necessary to prevent an aggravated assault. See § 13-
411(A). The instruction also informed the jury that the defendant is
presumed to have acted reasonably if he undertook his action to
prevent what he reasonably believed to be an imminent or actual
aggravated assault. See § 13-411(C). The accuracy of Almeida’s
proposed instruction is not in dispute.

¶8           The trial court refused his crime-prevention instruction
on the ground it was not supported by the evidence. On appeal, the
state does not challenge Almeida’s argument that this conclusion
was erroneous. Rather, the state maintains the ruling was proper
because “the substance of th[e] instruction was adequately covered
by the other justification-defense instructions given at trial.” The
state alternatively asserts that any error in refusing the instruction
was harmless. We address each issue in turn.

Evidentiary Support

¶9             “A party is entitled to an instruction on any theory
reasonably supported by the evidence.” State v. Rodriguez, 192 Ariz.
58, ¶ 16, 961 P.2d 1006, 1009 (1998). When making this assessment,
the question is whether the evidence, viewed in the light most
favorable to the proponent, supports giving the instruction. State v.
King, 225 Ariz. 87, ¶ 13, 235 P.3d 240, 243 (2010). The “slightest
evidence” is sufficient. Id. ¶ 14; accord State v. Plew, 150 Ariz. 75, 78,
722 P.2d 243, 246 (1986), disapproved on other grounds by King, 225
Ariz. 87, ¶¶ 9, 12, 235 P.3d at 242, 243; State v. Johnson, 108 Ariz. 42,
43, 492 P.2d 703, 704 (1972) (instruction required “if the evidence in
the slightest degree tends to” show justification). Under this
standard, a court does not weigh the evidence or resolve conflicts in
it, see Plew, 150 Ariz. at 78, 722 P.2d at 246; Nottingham, 231 Ariz. 21,
¶ 14, 289 P.3d at 954; the court merely decides whether the record
provides evidence “upon which the jury could rationally sustain the


                                    4
                         STATE v. ALMEIDA
                         Opinion of the Court

defense.” State v. Strayhand, 184 Ariz. 571, 587-88, 911 P.2d 577, 593-
94 (App. 1995). In this respect, the sufficiency of the evidence for a
jury instruction is similar to that for a verdict of guilt under Rule 20,
Ariz. R. Crim. P. See State v. West, 226 Ariz. 559, ¶¶ 16, 18, 250 P.3d
1188, 1191, 1192 (2011). Thus, while we generally review a court’s
denial of a jury instruction for an abuse of discretion, see State v.
Anderson, 210 Ariz. 327, ¶ 60, 111 P.3d 369, 385 (2005), we
independently assess whether the evidence supported a justification
instruction, because that is a question of law and involves no
discretionary factual determination. Cf. West, 226 Ariz. 559, ¶ 15,
250 P.3d at 1191 (clarifying de novo standard for reviewing
sufficiency of evidence for conviction).

¶10           Section 13-411(A) provides that a person is justified in
threatening deadly physical force if the person reasonably believes
such force “is immediately necessary” to prevent the other person
from committing any one of several enumerated crimes, including
aggravated assault with a deadly weapon under A.R.S.
§ 13-1204(A)(2). The evidence here favoring Almeida, if believed,
would allow a rational jury to conclude that the victim was the
aggressor and that Almeida reasonably believed his display of the
handgun at the traffic light was immediately necessary to prevent
another aggravated assault against either himself or his passengers.
Almeida’s version of the events described above came primarily
from his statements to police shortly after the incident and from his
fiancée’s testimony. The state presented evidence that challenged
the credibility of those statements. In assessing the propriety of the
justification instruction, however, we must view the evidence in the
light most favorable to Almeida. It is the task of a properly
instructed jury to determine the comparative credibility of the
witnesses. Based on the “slight[] evidence” of justification, the trial
court correctly instructed the jury on theories of self-defense and
defense of others. King, 225 Ariz. 87, ¶ 14, 235 P.3d at 243. The same
evidence also supported the crime-prevention instruction Almeida
requested pursuant to § 13-411.

¶11           The trial court acknowledged that its rulings on the
justification instructions could not be harmonized. The court
accounted for this conflict by suggesting that Almeida was not


                                   5
                         STATE v. ALMEIDA
                         Opinion of the Court

entitled to any justification instructions and that the court had
simply provided them in an excess of caution. But such instructions
were required because the evidence tended to suggest “in the
slightest degree” that Almeida was acting to prevent gun violence or
yet another aggravated assault from being perpetrated by the victim
during his ongoing episode of road rage. Johnson, 108 Ariz. at 43,
492 P.2d at 704. That the evidence of justification was fairly
debatable and contradicted by other evidence is irrelevant. See Plew,
150 Ariz. at 78, 722 P.2d at 246. Almeida was entitled to the crime-
prevention instruction because “the requisite modicum of evidence
was presented.” Id.

¶12          The trial court additionally found that the
crime-prevention statute, in particular, did not apply here because it
employed “present tense” language, whereas Almeida was
attempting to justify actions “after the fact” of the victim’s alleged
aggravated assault. Neither the statutory language nor the facts of
this case, however, provided grounds for refusing the instruction.

¶13           Throughout our code, “[w]ords in the present tense
include the future as well as the present.” A.R.S. § 1-214(A).
Section 13-411(A), as noted, allows a defendant to assert a
justification defense when the defendant’s act “is immediately
necessary to prevent” the commission of an offense by another.
Prevention typically is accomplished by a preemptive act. See The
American Heritage Dictionary 1397 (5th ed. 2011) (“prevent” means
“[t]o keep from happening; avert”). “‘[T]he effect of the crime
prevention privilege is to allow a person to use force in preventing a
crime, rather than compel him to await the commission of the
unlawful act.” Korzep v. Superior Court (Korzep II), 172 Ariz. 534, 537
n.2, 838 P.2d 1295, 1298 n.2 (App. 1991), quoting Note, Justification for
the Use of Force in the Criminal Law, 13 Stan. L. Rev. 566, 568 (1961). A
crime need not necessarily be “ongoing,” as the trial court stated, in
order for this justification to become available to a defendant. Thus,
the court could not deny the requested instruction here simply
because the victim was not committing an aggravated assault at the
moment Almeida acted to prevent such an offense. Cf. State v.
Taylor, 169 Ariz. 121, 122, 123, 817 P.2d 488, 489, 490 (1991)




                                   6
                         STATE v. ALMEIDA
                         Opinion of the Court

(defendant need not wait for violence or entry into home before
taking defensive action).

¶14           The trial court correctly implied that a defendant is not
entitled to a crime-prevention instruction when his act occurs after a
crime has been fully completed, leaving nothing to prevent. E.g.,
Anderson, 210 Ariz. 327, ¶¶ 10, 62, 111 P.3d at 377, 386 (perpetrator
beaten to death after sexual assault ended and victim had exited
dwelling); State v. Ruggerio, 211 Ariz. 262, ¶¶ 2-4, 8, 12, 120 P.3d 690,
691, 692, 693 (App. 2005) (child molester shot after leaving mobile
home and being placed in separate room from victim). But when we
view the evidence in the light most favorable to Almeida, as we
must, see King, 225 Ariz. 87, ¶ 13, 235 P.3d at 243, the record does not
present an after-the-fact justification.

¶15            The evidence supported an ongoing episode of road
rage by the victim rather than a discrete aggravated assault with a
firearm that had been fully resolved. Given the frenetic activity and
volatile emotions that characterize an episode of road rage, a single
incident might often involve multiple assaults with a weapon. See,
e.g., State v. Klokic, 219 Ariz. 241, ¶¶ 2-4, 15, 196 P.3d 844, 845, 847
(App. 2008). Road rage also can involve a car chase that endangers
those in the targeted vehicle, along with anyone else on the
roadway. E.g., State ex rel. Thomas v. Duncan, 216 Ariz. 260, ¶ 2, 165
P.3d 238, 240 (App. 2007). And a person’s aggressive or violent use
of a vehicle can render that vehicle itself a dangerous
instrumentality for purposes of aggravated assault. See State v.
Carrillo, 128 Ariz. 468, 470, 626 P.2d 1100, 1102 (App. 1980); see also
A.R.S. §§ 13-105(12), 13-1204(A)(2).

¶16         According to the evidence provided by Almeida, the
road rage incident in this case began when the victim aggressively
tailgated Almeida’s vehicle, escalated as the victim threatened
Almeida and his passengers with a handgun, and continued when
the victim chased Almeida’s vehicle through at least two red lights.
Unlike in Anderson, 210 Ariz. 327, ¶ 62, 111 P.3d at 386, Almeida’s
threat of deadly force was made when he and his passengers
remained within a zone of danger, when the threat of another
aggravated assault had not fully passed. The trial court therefore



                                   7
                         STATE v. ALMEIDA
                         Opinion of the Court

erred in concluding the crime-prevention instruction was not
supported by the evidence.

Coverage by Other Instructions

¶17           A trial court is not required to give a requested jury
instruction if its other instructions adequately cover the issue. State
v. Garcia, 224 Ariz. 1, ¶ 75, 226 P.3d 370, 387 (2010). Here, the state
contends the instructions concerning self-defense and defense of
others adequately covered the issue of whether Almeida was
justified in acting to prevent an aggravated assault, rendering the
additional instruction on crime prevention unnecessary. Our case
law, however, has long rejected this argument. See, e.g., State v.
Korzep (Korzep I), 165 Ariz. 490, 492, 494 n.1, 799 P.2d 831, 833, 835
n.1 (1990); State v. Garfield, 208 Ariz. 275, ¶ 15, 92 P.3d 905, 909 (App.
2004); State v. Hussain, 189 Ariz. 336, 339, 942 P.2d 1168, 1171 (App.
1997).

¶18           There are two principal reasons why a crime-prevention
instruction is appropriate even when instructions are provided for
self-defense and defense of others. First, as Almeida points out, the
statutes protect against different harms. Self-defense, A.R.S. § 13-
404, and defense of third persons, A.R.S. § 13-406, limit the use or
threat of force to those situations in which it is reasonably and
immediately necessary to repel force. Crime prevention, by contrast,
has no such limitation. See § 13-411(A); Korzep I, 165 Ariz. at 492, 799
P.2d at 833; Hussain, 189 Ariz. at 339, 942 P.2d at 1171. The
justification is available to prevent any enumerated crime, several of
which do not necessarily involve any physical force. Korzep II, 172
Ariz. at 537, 838 P.2d at 1298; State v. Thomason, 162 Ariz. 363, 365,
783 P.2d 809, 811 (App. 1989). This distinction is significant even for
the crime of aggravated assault.

¶19          When a defendant acts to prevent a possible assault
with a deadly weapon, the harm to be prevented under theories of
self-defense or defense of others is the use of “unlawful physical
force or deadly physical force.”       § 13-406; see §§ 13-404(A),
13-405(A)(2). Under a crime-prevention theory, the harm to be
prevented can simply be the “apprehension of imminent physical
injury,” A.R.S. § 13-1203(A)(2) (emphasis added), or insulting or


                                    8
                         STATE v. ALMEIDA
                         Opinion of the Court

provocative touching. See §§ 13-1203(A)(3), 13-1204(A)(2). Crime
prevention is therefore a “more permissive” justification, Korzep I,
165 Ariz. at 492, 799 P.2d at 833, and represents a “unique defense.”
Garfield, 208 Ariz. 275, ¶ 15, 92 P.3d at 909.

¶20           The second distinguishing feature of a crime-prevention
instruction is that it alerts a jury to the presumption of
reasonableness afforded by § 13-411(C). Korzep I, 165 Ariz. at 492,
799 P.2d at 833; State v. Barraza, 209 Ariz. 441, n.3, 104 P.3d 172, 175
n.3 (App. 2005); Hussain, 189 Ariz. at 339, 942 P.2d at 1171. The
statute provides that a defendant “is presumed to be acting
reasonably . . . if [he] is acting to prevent what [he] reasonably
believes is the imminent or actual commission of any of the offenses
listed.” § 13-411(C). This presumption is unique to § 13-411 among
the numerous justification statutes, and our supreme court has
described it as perhaps the “most important” feature of a crime-
prevention instruction. Korzep I, 165 Ariz. at 492, 799 P.2d at 833.
Thus, when an instruction is refused under this statute, other
instructions do not adequately cover the issue. Id. at 494 & n.1, 799
P.2d at 835 & n.1.

¶21          Relying on State v. Martinez, 202 Ariz. 507, ¶ 17, 47 P.3d
1145, 1148 (App. 2002), the state claims that no instruction was
required here because the presumption of reasonableness “is
rebuttable and vanishes when the state provides contradictory
evidence,” as occurred below. We reject this argument. Martinez
was decided under statutory amendments from 1997 that placed the
burden of proving a justification defense on a criminal defendant, see
1997 Ariz. Sess. Laws, ch. 136, § 4; Martinez, 202 Ariz. 507, ¶¶ 1, 10-
11, 47 P.3d at 1146, 1147; hence, much of the analysis in that case is
irrelevant to the current justification statutes in chapter 4 of title 13.
Before 1997, as is the case again now, once a defendant presents a
foundational showing of justification, the state must prove the
defendant’s act was not justified. See 2006 Ariz. Sess. Laws, ch. 199,
§ 2; Martinez, 202 Ariz. 507, ¶ 13, 47 P.3d at 1148. Moreover, even in
Martinez we did not suggest that because the presumption is
rebuttable, the jury should not be made aware of it. In fact, the jury
in that case received an instruction on the presumption of
reasonableness. 202 Ariz. 507, n.2, 47 P.3d at 1149 n.2; cf. Korzep II,


                                    9
                         STATE v. ALMEIDA
                         Opinion of the Court

172 Ariz. at 539-40, 542, 838 P.2d at 1300-01, 1303 (noting vanishing
nature of presumption in context of rejecting argument for judgment
of acquittal, but requiring grand jury to be instructed on
presumption of reasonableness on remand).

¶22          No precedent of this court, therefore, supports the
proposition that a trial court may deny a jury instruction on crime
prevention or omit a reference to the presumption of reasonableness
simply because the state has offered evidence that the defendant’s
actions were unreasonable. Were we to hold otherwise, we would
effectively nullify the presumption in § 13-411(C) and disregard our
supreme court’s decision in Korzep I emphasizing its importance,
which we cannot do as an intermediate appellate court. See State v.
Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003).

¶23             Furthermore, although the state suggests its argument
is limited to the “specific and unique facts of this case,” the
argument it advances is, in fact, a legal one with potentially broad
application. In every case where a crime-prevention justification is
properly raised, the state has the burden of proving a lack of
justification, see A.R.S. § 13-205(A); thus, if the state fails to present
any evidence showing unreasonableness by the defendant, the result
should be a judgment of acquittal. If the presumption simply
vanished with contrary evidence, the jury would never need to hear
of it in its final instructions.

Harmless Error

¶24           The state asserts that any error here was harmless. It
specifically maintains that the evidence supporting Almeida’s
justification theories was not credible. Yet the state’s argument on
this point appears to be based on the contention we have already
rejected regarding the vanishing presumption of reasonableness
under § 13-411(C).

¶25           Assuming arguendo harmless error review applies here,
the state has failed to carry its burden of establishing, beyond a
reasonable doubt, that the absence of the crime-prevention
instruction neither contributed to nor affected the verdict. See State
v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009). Indeed, our


                                   10
                         STATE v. ALMEIDA
                         Opinion of the Court

supreme court’s precedents suggest that the denial of a properly
requested jury instruction under § 13-411 will usually be reversible
error, given the prejudice that naturally flows from the refusal to
allow a distinct legal theory of defense, see Korzep I, 165 Ariz. at 492,
494 n.1, 799 P.2d at 833, 835 n.1, and from the failure to clarify the
state’s burden of proof on that issue. See State v. Dorman, 167 Ariz.
153, 154-55, 805 P.2d 386, 387-88 (1991); see also Hussain, 189 Ariz. at
339, 942 P.2d at 1171.

¶26          Under the facts of this case, we cannot conclude that the
absence of an instruction on § 13-411 and its presumption of
reasonableness had no effect whatsoever on the verdict. The jury
here might have rejected Almeida’s claims of self-defense and
defense of others because it believed, at the time he brandished his
own weapon, either that the victim presented no immediate threat of
physical force or that Almeida’s response to the threat of force was
not reasonably proportionate. Had the crime-prevention instruction
been submitted, it would have clarified that Almeida was presumed
to be acting reasonably if he had acted to prevent what he
reasonably believed to be an imminent aggravated assault. See
§ 13-411(C). Aggravated assault, as noted, does not require that any
physical force be used or attempted, but only that a reasonable
apprehension of imminent physical injury be created.               See
§§ 13-1203(A)(3), 13-1204(A)(2). Thus, had the jury believed the
version of events reported by Almeida and his fiancée, it could have
acquitted him under § 13-411 by finding, for example, that he acted
to prevent his fiancée and small child from again being placed in
fear by the victim displaying a weapon.

                              Disposition

¶27         For the foregoing reasons, the conviction and sentence
are reversed and the case remanded for further proceedings.




                                   11
