                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                        VICTOR MEDINA, Appellant.

                             No. 1 CA-CR 15-0304
                               FILED 3-17-2016


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201401266
            The Honorable David M. Haws, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Eugene Marquez, PLC, Tempe
By Eugene Marquez
Counsel for Appellant
                              STATE v. MEDINA
                              Decision of the Court



                         MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Peter B. Swann and Judge Lawrence F. Winthrop joined.


K E S S L E R, Judge:

¶1            Victor Medina appeals his convictions for six counts of
aggravated assault and one count of disorderly conduct. Medina argues
the trial court erred by declining to instruct the jury on two justification
defenses. For the following reasons, we affirm Medina’s convictions and
sentences.

                 FACTUAL AND PROCEDURAL HISTORY1

¶2            Medina shot three people at the end of an altercation that took
place at three locations. The first fight took place in front of a house in
which “S,” “Brother,” and “Brother-in-law” lived with several other
people.2 S was in front of the house unloading items from the trunk of his
car when Medina drove up in his car. S approached Medina to greet him,
but Medina began to argue with S and made various accusations. S
eventually told Medina to leave but Medina refused. Medina and another
person from Medina’s car then attacked and beat S. Medina and his friend
eventually left. As he did so, Medina told S, “I’m going to kill your fucking
family.” S immediately gathered Brother and Brother-in-law and drove
towards Medina’s house, which was a short distance away. They wanted
to “confront” Medina about why he attacked S. Brother brought a
handgun. S and Brother’s father (“Father”) heard the commotion from
nearby and Father followed them in his own car.

¶3           The second fight took place moments later a few blocks away
in the middle of the street. The second fight was captured by two video
cameras. S caught up to Medina and they stopped their cars side by side in
the street. Father stopped further back. Everyone exited their cars and


1 “We construe the evidence in the light most favorable to sustaining the
verdict, and resolve all reasonable inferences against the defendant.” State
v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998).

2   Medina’s presence at the first location also violated a court order.


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                            STATE v. MEDINA
                            Decision of the Court

Brother fought Medina and S fought Medina’s friend. Brother-in-law did
not fight anyone. Brother left his gun in the car throughout the second fight.
The group eventually stopped fighting but continued to argue. Medina
eventually got in his car and started to drive away. S believed everything
was over and got back in his car. Brother also got in the car and Brother-in-
law stood beside the car behind the open front passenger door. Medina
then turned his car around a short distance away, drove towards S’s car and
intentionally struck the open passenger door. This caused the door to strike
Brother-in-law. Medina then drove to his house a short distance away,
parked in the street, and walked towards his house. Brother-in-law got in
Father’s car thinking everyone would simply leave.

¶4              The third and final portion of the incident took place in front
of Medina’s house and was also captured on video. S immediately drove
to Medina’s house with Brother because S was angry that Medina hit his
car door. Father and Brother-in-law followed S in Father’s car. When S
arrived at Medina’s house, S intentionally ran into Medina’s parked car and
parked beside it. S testified he had no intent to harm Medina because
Medina was already out of his car. S simply wanted to damage Medina’s
car in retaliation for the damage Medina caused to S’s car.

¶5           After S hit Medina’s car, Medina and several members of his
family approached the two cars. Medina’s brother was armed with a
handgun. Medina asked for the gun but his brother refused to give it to
him. S and Brother-in-law got out of their cars and S spoke to Medina,
Medina’s mother, and Medina’s brother. Father stood back and observed.
Brother remained in the back seat of S’s car with his gun either on his lap
or beside him. He did not point the gun at Medina and claimed he never
took the gun out nor pointed it out of the car. While the video reveals much
arguing and discussion among the participants, nobody fought at this time.

¶6             At some point, Medina came to S’s car where Brother sat,
leaned into the back seat through the open door and tried to take Brother’s
gun from him. The video shows none of the other participants were
fighting at this point and it is not clear anyone knew Medina was trying to
get Brother’s gun. Medina’s brother eventually leaned into the back seat,
pointed his gun at Brother and told him to let go of the gun, which Brother
did. Medina took Brother’s gun, backed away from the cars and pointed
the gun towards S, Brother, and Brother-in-law. Medina’s mother thought
Medina grabbed the gun from Brother because Brother was pointing it at
someone, but she did not know who, if anyone, Brother pointed the gun at.




                                      3
                           STATE v. MEDINA
                           Decision of the Court

¶7             Medina’s family immediately approached Medina and tried
to calm him, told him to put the gun down and tried to prevent him from
approaching S, Brother, and Brother-in-law with the gun. S, Brother, and
Brother-in-law, all of whom were unarmed, moved away from Medina and
his family. Medina, however, raised the gun, raced past his family, past
Father and ran towards S, Brother, and Brother-in-law. Medina ignored
Father, who was standing at the open trunk of his car with his back to
Medina as Medina went past him. Medina then struck Brother over the
head with the gun and the gun discharged. Medina then went to S and
struck him over the head with the gun, causing it to discharge a second
time. Seconds later, Father approached Medina and struck him in the head
with a machete he had just retrieved from the trunk of his car. Father
testified he did so to protect himself and his family from Medina. Medina
then shot Father just below the sternum. Brother tackled Medina after he
shot Father, but Medina continued to fire. At some point, Medina shot
Brother in the shoulder. It is not clear, however, whether Medina shot
Brother after Father struck Medina with the machete or if Brother was
struck by one of the first two shots. Brother and Father testified that Father
did not strike Medina with the machete until after Medina shot Brother.
Brother-in-law did not participate in the final altercation, but was simply
standing nearby when Medina shot him in the abdomen.

¶8            Medina did not testify at trial, however, the officer that
questioned Medina testified that Medina told police he shot the victims in
self-defense after they attacked him and an unidentified person shot at him.
He never told police he was defending anyone other than himself. In his
motion for judgment of acquittal, Medina argued only that he acted in self-
defense. Medina’s counsel argued Medina “felt and reasonably felt that he
was being threatened and he was defending himself,” “was defending
himself from a perceived attack,” and “[n]o reasonable jury could find
otherwise.” Counsel also argued Medina had “a reasonable perceived belief
that he needed to use deadly force and defend himself and he did.” Medina
never argued that he was defending anyone other than himself. He also
never argued he shot the victims in an effort to stop an aggravated assault.

¶9            It was not until the discussion of the final jury instructions
that Medina argued for the first time that he was defending his family
and/or preventing an aggravated assault. Medina’s counsel argued
Medina felt the same fear for his family’s safety that he felt for his own
safety. He further argued that S and his “family” committed an aggravated
assault when S drove his car into Medina’s car while Medina was standing
nearby. Medina argued it was, therefore, reasonable for Medina to believe



                                      4
                             STATE v. MEDINA
                             Decision of the Court

that another aggravated assault was likely and Medina did what was
necessary to prevent another assault by the people who rammed his car.

¶10          The trial court found the evidence supported Medina’s
requested instruction on self-defense, but did not support Medina’s
requested instructions on defense of a third person or use of force in crime
prevention. See Ariz. Rev. Stat. (“A.R.S.”) §§ 13-404(A) (2010) (self-defense);
-406 (Supp. 2015) (defense of a third person); -411 (Supp. 2015) (crime
prevention). The trial court found there was no evidence of any threat or
use of deadly force against any third person, nor was there any evidence of
any aggravated assault Medina defended against.

¶11          A jury found Medina guilty as charged and the trial court
sentenced him to concurrent terms of eighteen years’ imprisonment for
each count of aggravated assault and two terms of six months in jail for
disorderly conduct and interfering with judicial proceedings.3 Medina
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031
(2010) and 13-4033(A)(1) (2010).

                                 DISCUSSION

¶12            Medina argues the trial court erred by failing to instruct the
jury on the justification defenses of defense of a third person and use of
force in crime prevention. Although “we generally review a court’s denial
of a jury instruction for an abuse of discretion . . . we independently assess
whether the evidence supported a justification instruction, because that is a
question of law and involves no discretionary factual determination.” State
v. Almeida, 238 Ariz. 77, 80, ¶ 9 (App. 2015).

¶13            A defendant is entitled to a justification instruction when the
“slightest evidence” supports the instruction. State v. Vassell, 238 Ariz. 281,
284, ¶ 9 (App. 2015). A trial court need not give a justification instruction,
however, unless the evidence “reasonably and clearly” supports the
instruction. Id. An inference that merely makes an argument possible is
not the “slightest evidence,” and “speculation cannot substitute for
evidence.” Id. When there is no physical evidence or testimony to support
a theory of justification, a trial court need not give a justification instruction.



3 Medina does not appeal his conviction or sentence for interfering with
judicial proceedings.



                                        5
                             STATE v. MEDINA
                             Decision of the Court

State v. Lopez, 158 Ariz. 258, 265 (1988) (“Because the requested instruction
did not fit the facts of the case, it was not error to refuse it.”).

¶14             Whether the evidence supports a justification instruction is a
question of law and does not involve any discretionary factual
determination. Almeida, 238 Ariz. at 80, ¶ 9. In our determination of
whether the evidence supports a justification instruction, we do not weigh
nor resolve conflicts in the evidence and only decide whether the record
contains evidence “upon which the jury could rationally sustain the
[justification] defense.” Id.

         A.     Defense of a Third Person

¶15         The justification defense applicable when evidence suggests a
person was defending another is provided by statute:

         A person is justified in threatening or using physical force or
         deadly physical force against another to protect a third person
         if, under the circumstances as a reasonable person would
         believe them to be, such person would be justified under
         section 13-404 or 13-405 in threatening or using physical force
         or deadly physical force to protect himself against the
         unlawful physical force or deadly physical force a reasonable
         person would believe is threatening the third person he seeks
         to protect.

A.R.S. § 13-406.4 Self-defense is defined in A.R.S. § 13-404(A) which
provides in general that a person may threaten to use or use physical force
against another person in self-defense “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.”5 As to the use of deadly force, A.R.S. § 13-405(A) (Supp.
2015) provides that a person may threaten to use or use deadly physical
force against another:

         1. If such person would be justified in threatening or using
         physical force against the other [in self-defense], and



4We cite the current version of applicable statutes unless revisions material
to this decision have occurred since the events in question.

5   We need not address the exceptions found in A.R.S. § 13-404(B).


                                       6
                           STATE v. MEDINA
                           Decision of the Court

      2. When and to the degree 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.

¶16           The trial court did not err by declining to instruct the jury
regarding Medina’s purported defense of a third person because there is no
record evidence to support giving the instruction. There is no evidence
Medina believed any force, deadly or otherwise, was necessary to protect
any third person. Defense counsel’s speculation about what Medina
believed is not “the slightest evidence,” nor evidence at all, and “cannot
substitute for evidence.” See Vassell, 238 Ariz. at 284, ¶ 9 (stating an
inference that merely makes an argument possible is not the “slightest
evidence”). Moreover, the record belies counsel’s claims. See supra ¶¶ 8-9.
The only evidence of what Medina believed at the time he shot the victims
was contained in his statements to police, and he told police he acted only
in self-defense.

¶17            Further, there is no evidence Medina actually acted to protect
a third person. The trial testimony and the video show that S, Brother, and
Brother-in-law were unarmed, had fully disengaged from Medina and his
family and had moved away from them once Medina got the gun and his
family congregated around him. There is no evidence S, Brother, or
Brother-in-law were engaging in or were about to engage in unlawful force
of any type against anyone when Medina attacked them. Although
Medina’s trial counsel speculated that Medina saw Father with the machete
and believed an attack of some sort was imminent, the video shows that
Medina ignored Father as he ran past Father towards S, Brother, and
Brother-in-law. The video also shows that Father was standing at the open
trunk of his car with his back to Medina when Medina ran right by him and
there is no evidence Father had the machete at that time.

¶18           Thus, the court did not err because defense counsel’s
speculation as to what Medina saw or thought and why he chose his course
of action, was not sufficient to require the instruction and the evidence did
not otherwise give rise to any reasonable inference sufficient to require the
instruction.

      B.     Use of Force in Crime Prevention

¶19           Section 13-411(A) defines the justification defense of use of
force in crime prevention. This section provides in relevant part that “[a]
person is justified in threatening or using both physical force and deadly



                                     7
                            STATE v. MEDINA
                            Decision of the Court

physical force against another if and to the extent the person reasonably
believes that such force is immediately necessary to prevent the other’s
commission of . . . aggravated assault” as defined in A.R.S. § 13-1204(A)(1),
(2) (Supp. 2015). A.R.S. § 13-411(A). A person commits aggravated assault
pursuant to A.R.S. § 13-1204(A)(1) if the person commits assault and causes
serious physical injury to another. A person commits aggravated assault
pursuant to A.R.S. § 13-1204(A)(2) if the person commits assault with a
deadly weapon or dangerous instrument. “A person is presumed to be
acting reasonably for the purposes of [A.R.S. § 13-411] if the person is acting
to prevent what the person reasonably believes is the imminent or actual
commission of any of the offenses listed in subsection A of [A.R.S. § 13-
411].” A.R.S. § 13-411(C).

¶20           The trial court did not err by declining to instruct on use of
force in crime prevention. “[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.” Almeida, 238 Ariz. at 81, ¶ 14.
Regardless of what S, Brother, and Brother-in-law may have done before
the final encounter, they withdrew from any confrontation once Medina
took Brother’s gun from him and the two groups separated. The only
confrontational aspect that arguably remained was that S, Brother, and/or
Brother-in-law may have been yelling at Medina from a distance as he
pointed the gun at them. There is no evidence any of them were committing
or were about to commit an aggravated assault before Medina charged and
attacked them.

¶21            That Father eventually attacked Medina with a machete while
Medina attacked the other victims does not require a different result. We
acknowledge that there are circumstances in which a person who acts in
self-defense may also be entitled to a jury instruction about the use of force
in crime prevention. See, e.g., State v. Korzep, 165 Ariz. 490, 494 (1990). Those
circumstances are not present here. Medina has never argued that the crime
he sought to prevent was an aggravated assault by Father. He argued
below that he was entitled to the instruction because he sought to prevent
an assault by the people who rammed his car. As previously discussed, the
video shows Medina ignored Father as he charged to attack the others and
did not act in response to any action of Father at that time. It was only after
Medina charged the other three men, attacked one or more of them, and
fired his gun twice that Father approached Medina. Although Medina may
have been entitled to a self-defense instruction based on Father’s use of the
machete, the justification defenses of self-defense and use of force in crime
prevention protect against different harms. See Almeida, 238 Ariz. at 81, ¶
18. Self-defense is available only when necessary to repel force. Id. Use of


                                       8
                           STATE v. MEDINA
                           Decision of the Court

force in crime prevention can be available even when not necessary to repel
force. Id.

¶22           Here, in the context of justification the only evidence for why
Medina shot Father, regardless of the lawfulness of eithers’ actions, was to
repel the force of Father’s attack with a machete. The court did not err
because the evidence did not require an additional instruction on use of
force in crime prevention in the limited context of Father’s actions under
these circumstances.6

                              CONCLUSION

¶23          For the foregoing reasons, we affirm Medina’s convictions
and sentences.




                                  :ama




6 Although these are not the exact grounds upon which the trial court based
its ruling, we may affirm on any basis the record supports. See State v.
Robinson, 153 Ariz. 191, 199 (1987).


                                     9
