                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
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                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

             DUSTIN MICHAEL SOMMERFIELD, Appellant.

                             No. 1 CA-CR 16-0470
                               FILED 8-22-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-107761-001
                     The Honorable Erin Otis, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
                         STATE v. SOMMERFIELD
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.


D O W N I E, Judge:

¶1            Dustin Michael Sommerfield appeals his conviction and
sentence for second-degree murder. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY 1

¶2            While driving home from work at approximately 8:10 p.m. on
February 15, 2015, C.F. saw a man come partially out of the passenger
window of a green Lincoln Navigator that was directly in front of him. The
man, later identified as Sommerfield, pointed what appeared to be a gun at
a truck in the adjacent lane. The truck veered off into a neighborhood.
Sommerfield withdrew the gun but continued to lean out the window and
yell at passing vehicles.

¶3             C.F. called 9-1-1 and followed the Navigator, which was being
driven by a woman. Another truck soon pulled alongside the Navigator,
and the Navigator swerved toward the truck, trying to run it off the road.
Sommerfield again came out of the passenger window and appeared to try
to throw something at the truck. After the Navigator turned into a parking
lot, a marked patrol vehicle pulled behind it. When officers activated the
vehicle’s lights and siren, the Navigator “took off.” The police cruiser
initially followed as the Navigator moved erratically through traffic but
stopped to allow an air unit to conduct surveillance. After the patrol car
retreated, the Navigator began moving with the flow of traffic, though the
driver at times used private property to circumvent stoplights.

¶4            After several blocks, the Navigator stopped, and Sommerfield
exited the passenger’s side, walked around the vehicle, and got into the
driver’s side. While driving the Navigator, Sommerfield turned the
headlights off and on. He ran one red light, drove over a raised median to
avoid a second red light, and ran a third red light. At the next traffic light,


1      We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                         STATE v. SOMMERFIELD
                           Decision of the Court

Sommerfield drove into the intersection, heading westbound, and struck a
white Dodge traveling southbound. The driver of the Dodge was killed.
The female occupant of the Navigator attempted to leave the scene but was
apprehended. Officers arrested Sommerfield, who had bloodshot, watery
eyes, slurred speech, and a strong odor of alcohol. After obtaining a search
warrant, officers drew his blood.

¶5           Sommerfield was charged with second-degree murder. As
aggravating circumstances, the State alleged that Sommerfield had a prior
felony conviction and was on release at the time of the charged offense.

¶6            The State called numerous witnesses at trial who were
stopped at the intersection at the time of the collision. The witnesses
consistently testified that the Navigator entered the intersection without
headlights. One witness testified she was “positive” the victim had a green
light. Another witness testified she assumed the Navigator had a red light
based on her understanding of how traffic lights operate.

¶7             The criminalist who analyzed the blood sample testified that
Sommerfield’s blood alcohol concentration at 12:07 a.m. and 1:15 a.m. was
.179 and .163, respectively. Based on a retrograde analysis, the criminalist
opined that Sommerfield’s blood alcohol concentration was .199
approximately two hours after the accident. The parties stipulated that the
victim died as a result of injuries sustained in the collision; she had
diphenhydramine and hydrocodone in her system. 2 The criminalist
testified there is no specific level at which all individuals are impaired by
these drugs and acknowledged that, when combined, the drugs can have
an “additive effect” that could potentially affect a person’s driving.

¶8             The parties agreed that the primary disputed issue at trial was
whether Sommerfield or the victim ran a red light. Sommerfield called the
deputy chief medical examiner, who testified that the victim had no
contacts or glasses at the time of the autopsy, though her driver’s license
stated that she required corrective lenses. Sommerfield also called a
representative from the Arizona Department of Transportation (“ADOT”)
who maintains a database for the timing of traffic signals. With respect to
the traffic light at issue, the ADOT witness testified it was possible for




2      Diphenhydramine is an antihistamine also known as Benadryl, and
hydrocodone is an opioid pain medication. The victim had a prescription
for the hydrocodone.


                                      3
                         STATE v. SOMMERFIELD
                           Decision of the Court

eastbound and southbound traffic to have a simultaneous red light while
westbound traffic had a green light.

¶9             After a 12-day trial, the jury found Sommerfield guilty of
second-degree murder. The jury found one aggravating factor: that the
offense involved the use of a deadly weapon or dangerous instrument,
specifically, a motor vehicle. The trial court sentenced Sommerfield to an
aggravated term of 17 years’ imprisonment. Sommerfield timely appealed.
We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION

   I.      Jury Instructions

¶10           Sommerfield contends the trial court erred by declining to
give the following jury instructions he requested regarding causation:

        2.03 — Causation Instruction – Intervening Event

        Conduct is the cause of a result when both of the following
        exist:

        1. But for the conduct the result in question would not have
           occurred.

        2. The relationship between the conduct and result satisfies
           any additional causal requirements imposed by the
           definition of the offense.

        In order to find the defendant guilty of second degree
        murder, you must find that the death was proximately caused
        by the acts of the defendant.

        The proximate cause of a death is a cause which, in natural
        and continuous sequence, produces the death, and without
        which the death would not have occurred.

        Proximate cause does not exist if the chain of natural effects
        and cause either does not exist or is broken by a superseding
        intervening event that was unforeseeable by the defendant
        and, with the benefit of hindsight, may be described as
        abnormal or extraordinary.




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                         STATE v. SOMMERFIELD
                           Decision of the Court

       The State must prove beyond a reasonable doubt that a
       superseding intervening event did not cause the death.

       Intervening Event or Superseding Cause

       It is a defense to the charge of second degree murder that the
       victim’s death was not the result of any criminal conduct on
       the part of the defendant, but that it resulted from a
       superseding cause. In regard to causation, an intervening
       event becomes a superseding cause only when its occurrence
       was both unforeseeable and when, with the benefit of
       hindsight, it may be described as abnormal or extraordinary.

       The State must prove beyond a reasonable doubt that a
       superseding intervening event did not cause the death.

¶11            The State objected to Sommerfield’s proffered instructions,
asserting the evidence did not support them. Sommerfield countered that
evidence of the victim’s possible impairment and failure to wear corrective
lenses, as well as the possibility she ran a red light, supported a superseding
cause instruction. The trial court disagreed, ruling the evidence did not
suggest a superseding cause, but instead addressed “who caused” the
collision. Concluding the evidence did not support the requested
instructions, the court declined to give them.

¶12            We review the refusal to give requested jury instructions for
an abuse of discretion, deferring to the trial court’s evaluation of the
evidence. State v. Wall, 212 Ariz. 1, 3, 5, ¶¶ 12, 23 (2006). A party is entitled
to a jury instruction on any theory reasonably supported by the evidence,
State v. Moody, 208 Ariz. 424, 467, ¶ 197 (2004), but a court does not err by
refusing to give an instruction that “does not fit the facts of the particular
case, or is adequately covered by the other instructions.” State v. Hussain,
189 Ariz. 336, 337 (App. 1997); see also State v. Mott, 187 Ariz. 536, 546 (1997)
(“A trial court is not required to give a proposed instruction when its
substance is adequately covered by other instructions.”). We review de novo
whether instructions accurately and adequately state the law. State v. Fierro,
220 Ariz. 337, 338, ¶ 4 (App. 2008). We review jury instructions in their
entirety and will not reverse based on an erroneous instruction unless the
instructions, taken as a whole, reasonably could have misled jurors. State
v. Hoskins, 199 Ariz. 127, 145, ¶ 75 (2000); State v. Gallegos, 178 Ariz. 1, 10
(1994).

¶13          “In Arizona, both ‘but for’ causation and proximate cause
must be established in a criminal case.” State v. Marty, 166 Ariz. 233, 236


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                         STATE v. SOMMERFIELD
                           Decision of the Court

(App. 1990). To establish legal causation under the facts of this case, the
State was required to prove that “but for” Sommerfield’s conduct, the
victim’s death would not have occurred. Id.; see also A.R.S. § 13-203(A)(1)
(conduct is the cause of a result when the “result in question” would not
have occurred “[b]ut for the conduct” at issue). To establish proximate
cause, the State was required to establish “that the difference between the
result intended” and “the harm actually suffered” was “not so
extraordinary that it would be unfair to hold” Sommerfield responsible for
the victim’s death. See Marty, 166 Ariz. at 237. A proximate cause may be
interrupted when “another cause with which the defendant was in no way
connected intervenes, and but for which” the injuries would not have
occurred. Id. An intervening cause is a superseding event, though, only
when unforeseeable, abnormal, or extraordinary. State v. Bass, 198 Ariz.
571, 575–76, ¶¶ 11–13 (2000).

¶14           In its final jury instructions, the trial court instructed jurors
that:

        The crime of Second Degree Murder requires proof of the
        following:

        Under circumstances manifesting extreme indifference to
        human life, the defendant recklessly engaged in conduct
        which created a grave risk of death and thereby caused the
        death of another.

        The Defendant’s conduct is reckless if:

   1. The defendant is aware of and consciously disregards a
      substantial and unjustifiable risk of death.

   2. The risk must be such that disregarding it is a gross deviation
      from what a reasonable person would do in the situation.

¶15            The second-degree murder instruction identified all elements
of the charged offense and accurately tracked the relevant statute. A.R.S.
§ 13-1104(A)(3); see State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998) (court
need not give every instruction requested by the defense: “The test is
whether the [given] instructions adequately set forth the law applicable to
the case”). “[N]o proximate cause instruction is required when the
instructions in their entirety properly inform the jury of the elements of the
offense, including causation . . . a proximate-cause instruction [need not] be
given whenever a causation issue is raised.” State v. Almaguer, 232 Ariz.
190, 197 n.6, ¶ 17 (App. 2013); see also Mott, 187 Ariz. at 546 (proximate cause


                                       6
                         STATE v. SOMMERFIELD
                           Decision of the Court

instruction not required when the instructions given “instruct the jury on
the elements of the crime, including causation,” and, in their entirety,
adequately state the law).

¶16            Relying on State v. Shumway, 137 Ariz. 585 (1983),
Sommerfield argues the superseding cause instruction was necessary
because jurors could consider the victim’s conduct when determining his
culpability. In Shumway, the undisputed evidence established that the
defendant “was not running a red light” and had the right of way when he
collided with the decedent’s car. Id. at 588. Under those facts — which
differ materially from those here — the supreme court held that the trial
court erred by refusing to give the defendant’s requested instruction that
left-turn drivers must yield the right-of-way to approaching traffic from the
opposite direction. Id. at 588.

¶17            Unlike Shumway, Sommerfield did not undisputedly have the
right of way. Furthermore, the evidence he cites in support of a
superseding cause instruction is the ADOT representative’s testimony, but
that witness simply stated it was possible for eastbound and southbound
traffic to simultaneously have a red light while westbound traffic had a
green light. Evidence, “not merely an inference making an argument
possible,” is required to support a jury instruction. State v. Vassell, 238 Ariz.
281, 284, ¶ 9 (App. 2015).

¶18            To the extent Sommerfield contends the victim’s medication
use and/or failure to wear corrective lenses warranted a superseding cause
instruction, we disagree. The parties agreed that either Sommerfield or the
victim ran a red light and caused the collision. The victim’s possible
cognitive or visual impairment had no tendency to suggest the color of the
light for her direction of travel. Nor would such circumstances constitute a
superseding event breaking the natural and continuous chain of events. 3
Furthermore, the jury instructions did not prevent Sommerfield from
arguing that he had the right of way — something he did repeatedly. See




3       Citing testimony by the State’s accident reconstruction expert,
Sommerfield also contends the victim was speeding. But that expert
testified the victim was traveling 61 miles-per-hour in a 65 mile-per-hour
zone. See State v. Vandever, 211 Ariz. 206, 208, ¶ 8 (App. 2005) (Speeding
was not an intervening event because a collision was “clearly a foreseeable
event within the scope of the risk created by [the defendant’s] illegal left
turn.”).


                                       7
                           STATE v. SOMMERFIELD
                             Decision of the Court

State v. Bruggerman, 161 Ariz. 508, 510 (App. 1989) (closing arguments may
be considered in assessing adequacy of jury instructions).

¶19           Under these circumstances, the trial court did not abuse its
discretion by declining to give Sommerfield’s requested causation
instructions.

   II.         Evidentiary Ruling

¶20           Sommerfield moved in limine to preclude evidence that he
brandished a handgun at another vehicle roughly 30 minutes before
colliding with the victim. He argued the evidence was “not relevant,
extremely prejudicial, and inadmissible character evidence.” In response,
the State argued:

         [T]he State must not only prove the defendant’s conduct was
         reckless but also that the defendant manifested an extreme
         indifference to human life. The gun pointing and the
         defendant’s attempt to hit another car as it passed the
         Navigator is relevant to why the defendant fled from police.

         ...

                The gun pointing is relevant to the defendant
         manifesting an extreme indifference to human life. This piece
         of evidence is why the pursuit which ultimately killed the
         victim started and it makes it more probable than not the
         defendant manifested an extreme indifference to human life.
         The gun pointing is highly probative of the defendant’s guilt
         in this case and is not out-weighed by unfair prejudice.
         Finally, the State is not using the gun pointing as character
         evidence; it is not another bad act it is part of the
         circumstances of the defendant causing the victim’s death.

The trial court denied Sommerfield’s motion “[f]or the reasons stated in the
State’s Response.”

¶21           While settling final jury instructions, the court questioned the
State’s request for a character and reputation instruction. Acknowledging
that the instruction had been submitted in error, the prosecutor withdrew
it, and the court suggested giving a limiting instruction regarding
uncharged acts. The State objected, explaining that the gun-pointing
evidence was not “other act” evidence, but circumstantial evidence of his
manifest indifference to human life — an element of second-degree murder.


                                      8
                         STATE v. SOMMERFIELD
                           Decision of the Court

Concluding Sommerfield’s use of a gun was part of a “continuous series”
of events, rather than a separate act, the court did not give an “other act”
limiting instruction.

¶22             “Absent a clear abuse of discretion, we will not second-guess
a trial court’s ruling on the admissibility or relevance of evidence.” State v.
Rodriguez, 186 Ariz. 240, 250 (1996). We may affirm on any basis supported
by the record. State v. Robinson, 153 Ariz. 191, 199 (1987).

¶23             Arizona Rule of Evidence (“Rule”) 404(b) prohibits evidence
of other crimes, wrongs or acts to prove the defendant’s character to act in
a certain way, but allows such evidence for non-propensity purposes, such
as showing “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” By its express terms, the Rule
applies only to evidence of “other” crimes, wrongs, or acts. Rule 404(b); see
also State v. Ferrero, 229 Ariz. 239, 242, ¶ 13 (2012).

¶24           The State relied on evidence that Sommerfield pointed a gun
at an occupied vehicle to prove continuing manifest extreme indifference to
human life on the night in question. The State argued Sommerfield’s
mental state when brandishing the firearm persisted until he crashed into
the victim’s car — an inference that was reasonably supported by the
evidence. After pointing the gun, Sommerfield continued to engage in
conduct that endangered the lives of those around him. He threw objects
at an approaching truck as the driver tried to force that vehicle off the road.
And once he began driving the Navigator, Sommerfield turned off the
headlights, notwithstanding it was dark outside. He repeatedly failed to
stop at red lights, choosing to either circumvent intersections or drive
through them. At one intersection, he caused an approaching vehicle with
the right of way to brake hard and turn sideways to avoid a collision.

¶25            Because the gun-pointing evidence had a tendency to prove
an element of the offense, it was intrinsic to the crime charged and was
properly admitted. See State v. Salamanca, 233 Ariz. 292, 295, ¶ 11 (App.
2013) (evidence proving a defendant’s mens rea “is admissible without
regard to Rule 404(b)”). And while the evidence was prejudicial to the
defense, it did not suggest that jurors determine Sommerfield’s guilt on an
improper basis. See Mott, 187 Ariz. at 545 (Unfairly prejudicial evidence
suggests jurors render a “decision on an improper basis such as emotion,
sympathy, or horror.”).




                                      9
                    STATE v. SOMMERFIELD
                      Decision of the Court

                         CONCLUSION

¶26          For the foregoing reasons, we affirm Sommerfield’s
conviction and sentence.




                     AMY M. WOOD • Clerk of the Court
                     FILED: AA




                                  10
