                               IN THE COURT OF APPEALS
                                   STATE OF ARIZONA
                                     DIVISION TWO


THE STATE OF ARIZONA,                             )
                                                  )           2 CA-CR 2002-0037
                                   Appellee,      )           DEPARTMENT A
                                                  )
                      v.                          )           O P I N IO N
                                                  )
MICHAEL EDWARD GARFIELD,                          )
                                                  )
                                   Appellan t.    )
                                                  )


             APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                   Cause No. CR-20011387

                             Honorable Howard Hantman, Judge

                              REVERSED AND REMANDED


Terry Goddard, Arizona Attorney General
 By Randall M. H owe and K athryn A. Damstra                                            Tucson
                                                                         Attorneys for Appellee

Wanda K. Day                                                                           Tucson
                                                                         Attorney for Appellant


B R A M M E R, Presiding Judge.


¶1             After a jury trial, appellant Michael Edward Garfield was convicted of aggravated

assault with a deadly weapon . On app eal, he argu es that there w as insufficient evidence to

support his conviction and that the trial court erred in refusing to give one of his proposed jury
instructions. Because we agree with his latter a rgument, we reverse his conviction and remand

the case for a new trial.

                                Facts and Procedural History

¶2             We view the facts and reasonable inferences therefrom in the light most

favorable to upholding the verdict. State v. Herrera, 203 Ariz. 131, 51 P.3d 353 (A pp. 2002).

On March 3 0, 2001, the victim, C ., telephon ed A. an d asked if he could come to A.’s house.

C. wanted to discuss an ongoing problem he was having with Frank Bastian, a mutual friend.

Bastian’s home had been burglarized a few weeks earlier, and he suspected C. had committed

the offense. A. agreed to allow C. to come over and called Bastian to tell him C. would be at

her house.

¶3             Garfield was already at A.’s house rep airing a moto rcycle, and A . asked him to

remain while C. and Bastian were there because she feared “so me sort of a fig ht or a braw l”

might erupt and she did no t want anyo ne to be inju red or “an ything in [her] house to get busted

up.” When C . arrived at A .’s house, G arfield was sitting on a couch near the door, and A. was

in a back room. C. testified that, shortly after his arrival, he had heard a noise near the front

door and had turned to see Bastian threatening him with a taser gun. G arfield then approached

C. from behind and shot him in the face. The bullet passed through C.’s mouth and left through

his cheek.

¶4             Garfield was indicted for attempted first-degree m urder and aggravate d assault

with a dea dly weapon or dangerous instrument. After the state rested its case, the trial court

granted in part Garfield’s motion for judgm ent of acqu ittal, made pursuant to Rule 20(a), Ariz.

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R. Crim P., 1 7 A.R. S., appare ntly finding the state had presented insufficient evidence of

premeditation to support the attempted first-degree murder charge. The court submitted the

lesser-included charge of a ttempted sec ond-deg ree murder to the jury. Th e jury subseq uently

found Garfield not guilty of attempted second-degree murder and guilty of aggravate d assault

with a deadly weapon or dangerous instrument. The court sentenced Garfield to an aggravated

prison term of twenty years.

                                            Discussion

Sufficiency of the Evidence

¶5             Garfield claims that the e vidence w as insufficient to support th e jury’s verdic t.1

He bases his argument on A.R.S. § 13-205(A), which provides that “a defendant shall prove any

affirmative defense raised by a preponderance of the evidence.” See State v. Farley, 199 Ariz.

542, ¶ 14, 19 P.3d 1 258, 1261 (A pp. 2001) (“Justification is an a ffirmative defense.”).

Garfield asserts that his defenses were “that [he] was justified in shooting C[.] in defense of

a third person [pursuan t to A.R.S. § 13 -406] . . . and in order to prevent a crime from occurring

[pursuant to A.R.S. § 13-411].” He maintains that his conviction should be set aside because

he proved his defenses by a preponderanc e of the evidence. The state re sponds that we sho uld

not address the argument because Garfield has inadequately developed it. We disagree but find

no merit to the argumen t.


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        Although we reverse Garfield’s conviction and remand on other grounds, we address
this argumen t because, if th e evidenc e was insu fficient to support the jury’s guilty verd ict, we
would be required to vacate the c onviction. See Peak v. Acuna, 203 Ariz. 83, 50 P.3d 833
(2002) (when appellate court reverses conviction for insufficient evidence, double jeopardy
prevents retrial).
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¶6             When reviewing a claim of insufficient evidence, we do not “reevaluat[e] the

evidence to determine whether we wo uld have convicted [the] defendant.” State v. Atwood,

171 Ariz. 576, 596, 832 P.2d 593, 613 (1992). We will not reverse a jury’s verd ict if it is

supported by substantial evidence—evidence capable of convincing unprejudiced persons of

the truth of a fact at issue. Id. If reasonable persons could differ on whether the evidence

establishes a fact at issue, that evidence is substan tial. Id. “We therefore rev iew the record

to determine whether . . . a rational trier of fact could have found the essential elements” of

aggravated assault with a deadly we apon or dange rous instrument. Id. at 597, 832 P.2d at 614.

¶7             Section 13-1203(A), A.R.S., prov ides that, “[a] person commits assault by . . .

[i]ntentionally, knowin gly or recklessly causing any physical injury to another person; or

. . . [i]ntentiona lly placing another person in reasonable apprehension of imminent physical

injury; or . . . [k]nowingly touching another person with the intent to injure, insult or provoke

such person.” Section 13-1204(A)(2), A.R.S., provides that “[a] person commits aggravated

assault if the person commits assault as defined in 13-1203 . . . [and] the person uses a deadly

weapon or d angerous instrument.”

¶8             The state presented ample evide nce to support the jury’s verdict. Garfield’s

argument appears to b e founded almost entirely on testimony by A. and T., a witn ess to the

shooting. As the state notes, Garfield does not directly challeng e the other evidence. R ather,

he cites testimony that C. had pointe d a gun at B astian to suggest that Ga rfield had pro ved his

affirmative defenses. H owever, we also n ote that C. testified that he had not drawn a gun.

Despite Garfield’s sweeping assertion that “it is reasonable to believe that [C.] lied about not

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having a gun,” it was for the jury to evaluate C.’s c redibility and the v alidity of h is testimony.

See State v. Hall, 204 Ariz. 442, 65 P.3d 90 (2003 ); State v. Roberts, 139 Ariz. 117, 677 P.2d

280 (App. 1 983).

¶9             The state presented C.’s testimony and the testimony of responding police

officers that Garfield had shot C. in the face, thereby causing him physical injury, and that

Garfield had done so us ing a deadly weapo n. See, e.g., State v. Bell, 113 Ariz. 279, 551 P.2d

548 (1976) (loaded gun is deadly we apon); see also State v. Greena walt, 128 Ariz. 388, 626

P.2d 118 (1981) (defining offense of assault with deadly weapon). A rational jury, therefore,

could have found that Garfield had committed aggravated assault with a deadly weapon. We

will not reevalu ate the conflicting evidence to determine the merits of Garfield’s affirmative

defense, a defense the jury rejected. See Atwood. That he presented evidence to support that

defense does not ren der the contrary evidence insu fficient to support his conviction.

Jury Instruction

¶10            Our inquiry is not en ded, how ever, beca use Garfie ld requested a jury instruction

based on § 13-411 . That sectio n provides in pertinent p art:

                      A. A person is justified in threatening or using both
               physical force and deadly physical force against another if and to
               the extent the person reasonably believes that physical force or
               deadly physical force is im mediate ly necess ary to prevent the
               other’s commission of . . . second or first degree murder . . . or
               aggravated assault . . . .

In 1983, the legislature amended § 13-411 to add a “[d]eclaration of policy,” the relevant

portion of which states:



                                                 5
                       A. The legislature finds that homes of A rizona reside nts
               are being burglarized and violated at an alarming and unacceptable
               rate that is endan gering the re sidents’ safety, h ealth and proper ty,
               thereby depriving them of their safe and peaceful enjoyment of
               their homes.

                       B. It is the legislative in tent to establish a policy by this
               law giving notice to all citizens, law enforcement personnel and
               the state courts that a person’s home, its contents and the
               residents therein s hall be to tally respected and pro tected in
               Arizona, and that the law en forcement officials and c ourts shall
               apply this and all other applicable criminal laws relating to the
               protection of the hom e and its reside nts promptly and severely so
               as to restore the total sanctity of the home in Arizona.

1983 Ariz. Sess. Laws, ch. 255, § 1. The state opposed Garfield’s request, arguing that the

defense is only available to a resident a ttempting to prevent a crime in his or her home.

Garfield responded that the defense is designed “to protect the sanctity of the home” an d that,

as a logical consequence, the defense it provides ex tends to a resident’s guests. The trial court

refused to give the instruction, ad opting the sta te’s argume nt and findin g that the statute

“doesn’t apply to these facts.”

¶11            Ordinarily, a defenda nt is entitled to any jury instruction reasonably supported

by the evidence. State v. Lucas, 146 Ariz. 597, 708 P.2d 81 (1985). We rev iew a trial court’s

refusal to give a proffered jury instruction for an abuse of discretion, State v. Bolton, 182

Ariz. 290, 896 P.2d 830 (1995), and will not reverse a trial court’s refusal unless the defendant

suffered prejudice as a result. State v. Snodgrass, 121 Ariz. 409, 590 P.2d 94 8 (App. 197 9).

¶12            Garfield claims the trial co urt erred by no t giving his req uested instru ction,

arguing that the “facts . . . perm it[ted] the infere nce that [he] acted un der the reaso nable

apprehension that a crime was going to occur in [A.’s] home,” presumably because Bastian
                                                  6
testified that C. had drawn a gun before Garfield shot him. Garfield further argues that “nothing

in either the statute or the declaration [of policy] . . . mandates that [a defendant] must be a

resident of the premises” to invoke § 13-411 and that A. had “imputed” her concern for the

sanctity of her home to Garfield, who had remained there at her request to help prevent

violence between C. and Bastian.

¶13           Cases that have interpreted § 13-411(A) have been inconsistent in determining

its reach. State v. Taylor, 169 Ariz. 121, 81 7 P.2d 488 (1991 ) (resident need not w ait until

assailant enters home to use force against assa ilant); State v. Korzep, 165 Ariz. 490, 799 P.2d

831 (1990) (resident entitled to § 13-411 instruction when force used to prevent crime by

coresident); State v. Hussain, 189 Ariz. 336, 942 P.2d 1168 (A pp. 1997 ) (person stayin g in

motel room is resident of room and entitled to § 13-411 instruction); State v. Thomason, 162

Ariz. 363, 365, 783 P.2d 809, 811 (App. 1989) (statute “is applicable only to persons

protecting the home, its contents, or the residents within,” and defendant could not invoke

defense because m urder occu rred on bu siness prem ises). Garfield did not argue below nor

does he argue on appeal that he was a resident of A.’s home .

¶14            In Korzep, the suprem e court cau tioned us from being overly restrictive when

interpreting the legislative intent behind the passage of § 13-411. The court said:

                      It would be a mistake for us to overemphasize the fact that
               the legislature w as concern ed with bu rglaries wh en it amended
               § 13-411 in 1983 to add subsection C. This is especially true
               because several of the crimes enumerated in subsection A, such
               as child molestation and sexual conduct with mino rs, frequently
               are committed by residents rather than by intruders.



                                               7
                     Finally, the broad language in the declaration of policy
              supports our conclusion that § 13-411 applies whether the
              criminal against whom fo rce is used is a resident or a
              nonreside nt. Although the legislature was concerned about
              homes being burglarized and violated, it also expressed its intent
              to give “notice to all citizens” that “a person’s home . . . and the
              residents therein shall be totally respected and protected in
              Arizona.” Laws 1983, Ch. 255, § 1 (emphasis added). We
              believe the legislature’s intent that residents be totally respected
              and protected can be realized only if reside nts may use fo rce to
              prevent the commission of enumerated crimes by other residen ts
              as well as by intruders or invitees. Had the legislature intended
              § 13-411 to apply only when force is used to prevent the
              commission of crimes by n onresiden ts, it could easily h ave said
              so. See Smith v. Superior Court, 17 Ariz. App. 79, 82, 495 P.2d
              519, 522 (197 2).

Korzep, 165 Ariz. at 49 4, 799 P.2d at 835 . The sam e non-restrictive rationale c ould apply to

allowing a visitor, such as Garfield was here, to protect the sanctity of A.’s home.

¶15           The jury was presented evidence that Garfield had “reasonably believe[d] that

physical force or deadly physical force [w as] immediately necessary” to preven t C. from

committing second-degree murder, first-degree murder, or aggravated assault. § 13 -411(A).

Accordingly, we conclude that the legislative purpose for the statute wou ld permit a jury to

find that Garfield had been attempting to protect the sanctity of A.’s home when he shot C.

Although the jury apparently did not agree with Garfield’s theory that, by shooting C., he had

been defending a third person, see § 13-406 , we can not say beyon d a reason able doub t that it

would not have agreed with his theory that he had been protecting the sanctity of A.’s home.

Additionally, because § 13-411 presents a unique defense, we cannot say that the trial court’s

refusal to instruct the ju ry consistently with that section was harmless error merely because



                                               8
the court had instructed the jury on § 13-406. See Korzep. Accordingly, we reverse Garfield’s

conviction and senten ce and rem and the ca se for a new trial.

¶16           Reversed and remanded.



                                              ________________________________________
                                              J. WILLIAM BRAMMER, JR., Presiding Judge

CONCURRING:



______________________________________
M. JAN FLÓREZ, Judge



______________________________________
JOSEPH W. HOWARD, Judge




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