                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                      JOSE RAUL JUAREZ-ORCI,
                             Appellant.

                      No. 2 CA-CR 2013-0513
                      Filed January 30, 2015

          Appeal from the Superior Court in Pima County
                       No. CR20121629001
               The Honorable Kenneth Lee, Judge

AFFIRMED IN PART; REVERSED IN PART AND REMANDED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Michael T. O’Toole, Assistant Attorney General, Phoenix
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller, Assistant Public Defender, Tucson
Counsel for Appellant


                            OPINION

Judge Espinosa authored the opinion of the Court, in which
Presiding Judge Miller and Chief Judge Eckerstrom concurred.
                      STATE v. JUAREZ-ORCI
                        Opinion of the Court



E S P I N O S A, Judge:

¶1           After a jury trial, Jose Juarez-Orci was convicted of
attempted second-degree murder, aggravated assault with a deadly
weapon,     two     counts    of     aggravated   assault  causing
temporary/substantial disfigurement, one count of aggravated
assault in violation of a protection order, and one count of
aggravated assault committed as an act of domestic violence, all
perpetrated against his wife, J., on one occasion. All counts were
deemed “dangerous offense[s]” involving a deadly weapon or
dangerous instrument, a knife. On appeal, Juarez-Orci challenges
only the trial court’s jury instruction on attempted second-degree
murder, arguing the instruction improperly informed the jury that it
could find Juarez-Orci guilty of attempted second-degree murder if
it found he knew his conduct would cause serious physical injury.
We agree and reverse that conviction.

                Factual and Procedural Background

¶2           We state the facts in the light most favorable to
sustaining the verdict. See State v. Bible, 175 Ariz. 549, 595, 858 P.2d
1152, 1198 (1993). Juarez-Orci and J. were married in 2007 and
subsequently had three children. They separated in March 2012, in
part because Juarez-Orci did not want J. to “go out” with her friends.
According to J., he was “very possessive [and] very jealous,” and
threatened J. that if she went out, “something would happen to . . .
the children.” He also told her “he didn’t want to see [her] anymore,
and if he saw [her], he would beat [her] up.”1

¶3           J. entered a domestic violence shelter, and, apparently
due to fears that Juarez-Orci would take the children to Mexico and
not return, she procured an order of protection. Although she
stayed at the shelter at night, she frequently went to her home

      1 Although  not permitted into evidence at trial, J. had told
Juarez-Orci that she had been seeing another man and was pregnant
by him.


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                      STATE v. JUAREZ-ORCI
                        Opinion of the Court


during the day. In April, J. and two friends arrived at the house,
and J. received a call from Juarez-Orci. J. asked him why the front
door was bolted, thereby indirectly letting him know she was home,
and told him, “[Y]ou know fully well that you can’t be over here.”

¶4           After bringing groceries in, J. went back into the garage
to close the garage door and saw Juarez-Orci pull up in his truck
and get out “with a look of anger on his face.” J. stepped back into
the house, closing the door between the house and the garage, and
told her friends, “Call the police, he’s coming,” and began dialing
9-1-1 on her telephone. At that moment, Juarez-Orci “knocked [the
door] down,” and “fell to the floor” from the force of his entry. He
then accosted J. repeating, “[w]e need to talk,” and “grabbed [her
with] force.” J. repeatedly told him to leave, but he held her by the
shoulder with one hand and began to stab her with a drywall knife.2
The first injury was to her face. J. tried to calm Juarez-Orci by
embracing him and telling him, “I love you a lot. I’ll stay with you.”
He responded that he “couldn’t live . . . [w]ithout the children, . . .
without his family.” He then said, “‘No,’ and threw [her] to the
floor.”

¶5           Juarez-Orci began to hit J., and then grabbed her by her
hair and “slam[med]” her face against the floor “[m]any times.” J.
screamed, and he pulled her head back and put the knife against her
neck. She grabbed the knife and the two began struggling over it.
At some point the knife was bent. Juarez-Orci then got up, dragged
J. by the hair to the kitchen, and began searching through the
cabinets. J. got to her feet and tried to prevent Juarez-Orci from
opening the drawer containing knives. When he opened it, J. ran
out of the house and to a neighbor’s house. Juarez-Orci then left in
his truck.

¶6          J. sustained “multiple lacerations” and puncture
wounds. She had an 8.5-centimeter laceration extending from her
right jaw to her right ear lobe, which required multiple layers of

      2Juarez-Orci used the knife in his work installing office
furniture and normally kept it in a tool bag in the back of his truck.


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                      STATE v. JUAREZ-ORCI
                        Opinion of the Court


stiches. She also had a neck wound that could have been lethal had
it been deeper. On her forearm, J. had an approximately two-inch
cut that exposed muscle tissue and required between fifteen to
twenty stitches to close. J. further had contusions from blunt
trauma, including to her forehead, and various abrasions. Some of
J.’s injuries, puncture wounds on her hands and abrasions on her
forearm, were reported to be “defensive wounds.”

¶7           After the attack, Juarez-Orci went to the home of E.P.
and eventually told him he had gone to his wife’s house and heard
his wife and “a couple other women . . . talking about him,” and “he
kicked the door [and] ran inside.” Juarez-Orci said he and his wife
argued and he remembered “cutting her on the arm.” He said he
did not remember anything else. E.P. then called 9-1-1. He
subsequently told a detective that Juarez-Orci had remembered
“stabbing [J.] once in the arm” and had thought he had “stabbed her
two or three times.”

¶8            Police officers found blood on the kitchen floor of J.’s
residence and collected two knives, including Juarez-Orci’s bent,
blood-stained drywall knife. They also searched Juarez-Orci’s truck
and found his blood-stained shirt and blood stains on the steering
wheel and elsewhere in the truck’s interior. DNA 3 from the knife
blade, Juarez-Orci’s shirt, and the steering wheel matched J.’s DNA.
Juarez-Orci was thereafter indicted for attempted first-degree
murder, aggravated assault with a deadly weapon or dangerous
instrument, two counts of aggravated assault causing temporary but
substantial disfigurement, first-degree burglary, aggravated assault
in violation of a protection order, and aggravated assault committed
as an act of domestic violence.

¶9          At trial, without objection, the court gave the following
attempted second-degree murder jury instruction, in relevant part:

            The crime of attempted second degree
            murder requires proof that the defendant


      3Deoxyribonucleic   acid.


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                      STATE v. JUAREZ-ORCI
                        Opinion of the Court


             intentionally committed any act that was a
             step in a course of conduct that the
             defendant planned would end or believed
             would end in the commission of second
             degree murder.

             The crime of second degree murder
             requires proof of one of the following:
             1. The defendant intentionally caused the
             death of another person or 2. The
             defendant caused the death of another
             person by conduct which the defendant
             knew would cause death or serious
             physical injury.

The court also instructed the jury that:

             Serious physical injury includes physical
             injury which creates a reasonable risk of
             death, or which causes serious or
             permanent      disfigurement,       serious
             impairment of health, or loss or protracted
             impairment of any bodily organ or limb.

             “Physical injury” means the impairment of
             a physical condition.

¶10         At the conclusion of the four-day trial, the jury found
Juarez-Orci guilty of attempted second-degree murder, as a lesser-
included offense of attempted first-degree murder, and all counts of
aggravated assault. 4     The trial court imposed concurrent,
presumptive prison terms, the longest of which is for 10.5 years. We




      4The  burglary charge was dismissed after the jury was unable
to reach a verdict on that charge.


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                      STATE v. JUAREZ-ORCI
                        Opinion of the Court


have jurisdiction over his appeal pursuant                  to   A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).5

                              Discussion

                         Standard of Review

¶11           Juarez-Orci argues the trial court erred by instructing
the jury that it could find him guilty of attempted second-degree
murder if it found he had intentionally or knowingly caused serious
physical injury without causing death and asserts his conviction
must be reversed on that charge. Juarez-Orci did not object to the
instruction and therefore has forfeited the right to seek relief for all
but fundamental, prejudicial error, and we limit our review
accordingly. Ariz. R. Crim. P. 21.3(c); State v. Henderson, 210 Ariz.
561, ¶¶ 19–20, 115 P.3d 601, 607 (2005); see also State v. Brown, 233
Ariz. 153, ¶ 19, 310 P.3d 29, 36 (App. 2013) (untimely objection first
raised in motion for new trial does not preserve issue for appeal).
Accordingly, Juarez-Orci “‘bears the burden to establish that
(1) error exists, (2) the error is fundamental, and (3) the error caused
him prejudice.’” State v. James, 231 Ariz. 490, ¶ 11, 297 P.3d 182, 185
(App. 2013), quoting State v. Bearup, 221 Ariz. 163, ¶ 21, 211 P.3d 684,
689 (2009).

           Attempted Second-Degree Murder Instruction

¶12          We review jury instructions de novo to determine
whether they accurately reflect the law. State v. Cox, 217 Ariz. 353,
¶ 15, 174 P.3d 265, 268 (2007). A challenged instruction should be
viewed in its entirety and need only be “‘substantially free from
error’” in order to support a conviction. State v. Zaragoza, 221 Ariz.


      5Juarez-Orci  filed a motion for a new trial or to set aside the
verdict, citing State v. Ontiveros, 206 Ariz. 539, 81 P.3d 330 (App.
2003), and arguing the trial court erred in instructing the jury on
attempted second-degree murder. The court denied the motion
noting that in Ontiveros, unlike here, the state had argued the theory
of serious physical injury.


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                        STATE v. JUAREZ-ORCI
                          Opinion of the Court


49, ¶ 15, 209 P.3d 629, 633 (2009), quoting Cox, 217 Ariz. 353, ¶ 15, 174
P.3d at 268.

¶13          Both Juarez-Orci and the state agree that the
instructions given in this case “are not materially different” from
those provided in State v. Dickinson, 233 Ariz. 527, 314 P.3d 1282
(App. 2013). The instruction at issue in Dickinson provided that the
jury could find the defendant guilty of attempted second-degree
murder if it found he had “believed [his] act was a step in the course
of conduct planned to culminate in the commission of the crime of
second degree murder,” which offense it defined as follows:

               The crime of second degree murder has the
               following elements: Number one, the
               defendant caused the death of another
               person; and number two, the defendant
               either, A, did so intentionally or, B, knew
               that his conduct would cause death or
               serious physical injury.

233 Ariz. 527, ¶¶ 7-8, 314 P.3d at 1284-85. We determined that this
instruction erroneously conveyed to the jury that the defendant
could be convicted of attempted second-degree murder based on an
intent to cause serious physical injury, contravening State v.
Ontiveros, 206 Ariz. 539, ¶ 14, 81 P.3d 330, 333 (App. 2003), in which
this court had found there is no offense of attempted second-degree
murder in Arizona based on merely knowing conduct will cause
serious physical injury. Dickinson, 233 Ariz. 527, ¶ 11, 314 P.3d at
1285.

¶14          The state argues the instructions here were correct
when “viewed in their entirety.” It points out that, unlike the
instructions in Ontiveros,6 those at hand contained language from the


      6In   Ontiveros, the relevant instruction stated:

               The crime of attempted second degree
               murder requires proof of the following:
               1. The defendant intentionally committed

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                      STATE v. JUAREZ-ORCI
                        Opinion of the Court


attempt statute, requiring the jury to find Juarez-Orci had taken a
“‘step in a course of conduct that [he] planned would end or
believed would end in the commission of second degree murder,’
which includes causing ‘the death of another.’” It also notes that the
portion of the jury instruction allowing for culpability on a finding
of intent to cause “serious physical injury” was directly preceded by
the requirement that the defendant “‘cause[] the death of another.’”
According to the state,

            because the instructions told the jurors that
            [Juarez-Orci] had to engage in conduct he
            believed would ‘end in the commission of
            second degree murder,’ the jurors could
            not have found [Juarez-Orci] guilty if they
            believed he only planned on causing
            serious physical injury. This is because
            there can be no ‘commission’ of second-
            degree murder without the death of the
            victim.

Thus, when the instructions are read as a whole, the state argues, the
phrase, “serious physical injury” is “superfluous.” The state further
notes the jury was instructed it could find “some instructions no
longer apply” during its deliberations. And, it emphasizes it did not
make this argument in Dickinson, but maintained instead that
Ontiveros should be overruled. The state concludes that in Dickinson
this court “simply did not consider” whether the instructions




            an act; and 2. The act was a step in a course
            of conduct which the defendant planned or
            believed would cause the death or serious
            physical injury of another person.

206 Ariz. 539, ¶ 5, 81 P.3d at 331 (emphasis omitted).


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                      STATE v. JUAREZ-ORCI
                        Opinion of the Court


adequately advised the jurors of the elements of attempted second-
degree murder.7

¶15          The state is correct that we held the instruction given in
Dickinson was erroneous pursuant to Ontiveros, without addressing
the additional language in the instruction, which required proof that
the defendant had engaged in “conduct planned to culminate in the
commission” of murder. Dickinson, 233 Ariz. 527, ¶ 8, n.3, 314 P.3d
at 1284, 1285 n.3. This does not mean, however, we were mistaken
in finding the Dickinson instruction flawed. And here, as in
Dickinson, the trial court clearly identified two alternative levels of
intent when instructing the jury on the underlying offense of
second-degree murder. We disagree the jury necessarily would
have disregarded the portion of the instruction that referred to
“serious physical injury” based on the court’s accompanying
instruction that attempted second-degree murder required proof
Juarez-Orci had believed his actions “would end in the commission
of second degree murder.” The instruction did not make it clear that
the jury was required to find Juarez-Orci had intended to kill J., not
merely injure her, before it could find him guilty of attempted
murder.

¶16 Moreover, we do not agree the jury would have ignored the
“serious physical injury” portion of the instruction because of the
additional charge that some instructions may not apply. When the
facts could support a finding of intent to either kill or knowingly

      7The  state further asserts our recent opinion in State v. Ruiz,
700 Ariz. Adv. Rep. 4, ¶¶ 6, 11 (Ct. App. Nov. 25, 2014), which found
erroneous an instruction similar to that in Dickinson, “effectively
presumed the instructions . . . amounted to fundamental error
because they were similar to the ones given in Ontiveros.” See id.
(instruction stating attempted manslaughter could be proved by
evidence “[a] person caused the death of another person by conduct
which the defendant knew would cause death or serious physical
injury” erroneously permitted jury to consider conduct defendant
may have intended or believed would cause only serious physical
injury).


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                       STATE v. JUAREZ-ORCI
                         Opinion of the Court


cause serious physical injury, it is very likely the jury would have
considered both alternatives provided. Thus, the words “serious
physical injury” cannot be considered “mere surplusage,” as the
state suggests. Cf. United States v. Brown, 575 F.2d 746, 747 (9th Cir.
1978) (where no evidence of flight or attempted flight, references to
flight in instruction “surplusage”); see also State v. Rodriguez, 114
Ariz. 331, 334, 560 P.2d 1238, 1241 (Ariz. 1977) (general intent
instruction “surplusage” where jury received separate instruction on
specific intent for crime at issue, instructions were separated by five
unrelated instructions, and specific intent requirement discussed six
times in closing arguments and general intent not mentioned). We
agree with Juarez-Orci it is “unlikely” a jury would “ignor[e] an
alternative way of committing the offense,” that is, by conduct the
defendant may have intended or believed would cause only serious
physical injury. Accordingly, the instruction contravenes our
holding in Ontiveros and constitutes error. See Ontiveros, 206 Ariz.
539, ¶ 14, 81 P.3d at 333; see also Dickinson, 233 Ariz. 527, ¶ 12, 314
P.3d at 1285-86; State v. Ruiz, 700 Ariz. Adv. Rep. 4, ¶ 11 (Ct. App.
Nov. 25, 2014).

                  Fundamental Error and Prejudice

¶17           Juarez-Orci next must establish fundamental error by
showing “that the error complained of goes to the foundation of his
case, takes away a right that is essential to his defense, and is of such
magnitude that he could not have received a fair trial.” Henderson,
210 Ariz. 561, ¶ 24, 115 P.3d at 608. But we have held “that
instructing a jury on a non-existent theory of criminal liability is
fundamental error.” James, 231 Ariz. 490, ¶ 13, 297 P.3d at 185. As in
Dickinson and Ruiz, the instruction at issue here potentially
“improperly relieved the State of its burden of proving an element of
the offense,” an error which goes to the foundation of the case, and
therefore is fundamental. State v. Kemper, 229 Ariz. 105, ¶¶ 5–6, 271
P.3d 484, 486 (App. 2011); see also Dickinson, 233 Ariz. 527, ¶ 12, 314
P.3d at 1286; Ruiz, 700 Ariz. Adv. Rep. 4, ¶ 12.

¶18          Given the fundamental nature of the erroneous
instruction, we must determine whether Juarez-Orci has shown
resulting prejudice. See Henderson, 210 Ariz. 561, ¶ 26, 115 P.3d at

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                      STATE v. JUAREZ-ORCI
                        Opinion of the Court


608. “Prejudice is a fact-intensive inquiry, the outcome of which will
‘depend [ ] upon the type of error that occurred and the facts of a
particular case.’” Ruiz, 700 Ariz. Adv. Rep. 4, ¶ 13, quoting
Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d at 1286 (alteration in
Dickinson). A defendant must “‘prove prejudice’” rather than rely
on “‘speculation’” to carry his burden. Dickinson, 233 Ariz. 527, ¶ 13,
314 P.3d at 1286, quoting State v. Munninger, 213 Ariz. 393, ¶ 14, 142
P.3d 701, 705 (App. 2006). He must “‘show that a reasonable,
properly instructed jury could have reached a different result.’”
Ruiz, 700 Ariz. Adv. Rep. 4, ¶ 13, quoting Dickinson, 233 Ariz. 527,
¶ 13, 314 P.3d at 1286. As part of this analysis, we consider “‘the
parties’ theories, the evidence received at trial and the parties’
arguments to the jury.’” Id., quoting Dickinson, 233 Ariz. 527, ¶ 13,
314 P.3d at 1286.

¶19           The state’s theory was that Juarez-Orci intended to kill
J., not that he intended to cause serious physical injury or knew that
his conduct would cause serious physical injury. This is clear from
the prosecutor’s first remarks to the jury in her opening statement:
“Ladies and gentlemen of the jury, this is a case about a man who
tried to kill his wife because she was leaving him.” She ended her
opening statement with these words: “We will ask that you find
that the defendant intentionally tracked down [J.] and tried to kill
her for leaving him.”

¶20         The trial evidence included testimony that Juarez-Orci
had threatened to “beat [J.] up.” Prior to attacking J., Juarez-Orci
had asked her to stay with him, saying he loved her. To try to calm
him, J. told him she would stay. The first wound Juarez-Orci
inflicted was to J.’s face. He also inflicted several sizable wounds,
including a wound to J.’s neck that could have been lethal had it
been deeper. J. testified she believed “he was going to kill [her].”

¶21          In closing argument, the prosecutor said Juarez-Orci
“was a jealous, controlling husband, who tracked down his wife
after she left him and attempted to kill her.” She maintained J.’s
injuries were “not just assault-type injuries. Those injuries are
someone who is trying to kill a person.” She asserted that J. had
“saved her own life” and escaped Juarez-Orci’s “attempts to kill

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                       STATE v. JUAREZ-ORCI
                         Opinion of the Court


her,” and noted he had attempted to find another knife. She then
stated that the state “ha[d] shown beyond a reasonable doubt that
[Juarez-Orci] was attempting to kill J.,” and that it was
premeditated. The state did not argue attempted second-degree
murder.

¶22          In contrast, during his closing argument, Juarez-Orci’s
counsel urged that he had committed assault, but had not acted with
premeditation or with intent to kill, stating, “all that . . . blood, the
scars, the bent knife, all of that shows a violent assault. . . . But that
doesn’t prove that he tried to kill her during those events, or that he
intended to kill her.” He continued, “What you have to look at
when you’re gauging his intent, I believe, is the testimony of all the
witnesses that the stabbing was something that was sudden.” He
noted the absence of “classic premeditation” statements, such as
death threats or words to the effect of “if I can’t have you, nobody
will have you.” Counsel repeatedly argued Juarez-Orci did not
intend to kill J., and said: “It was terrible, but the State wants to
make it look worse than it was. They want to make an assault an
attempted murder.” The erroneous instruction therefore related
directly to Juarez-Orci’s defense. Cf. Dickinson, 233 Ariz. 527, ¶ 22,
314 P.3d at 1288 (mistaken identity and non-involvement defenses
did not implicate fundamental error in instruction, incorrect mental
state); James, 231 Ariz. 490, ¶ 16, 297 P.3d at 186 (defenses of
mistaken identity, alibi or nonuse of a weapon did not involve
applicable fundamental error).

¶23          Although the evidence was sufficient to find that
Juarez-Orci had intended to kill J., that was not the only possible
reasonable conclusion. The jury could have based its guilty verdict
solely on a finding that he had intended or knew that his conduct
would cause J. serious physical injury. See Ruiz, 700 Ariz. Adv. Rep.
4, ¶ 18; see also Ontiveros, 206 Ariz. 539, ¶¶ 18-19, 81 P.3d at 334
(correctly instructed jury could have found defendant who admitted
shooting victim intended to injure not kill). We are therefore unable
to say beyond a reasonable doubt that the jury would have found
Juarez-Orci guilty of attempted second-degree murder without the
incorrect instruction. See Ruiz, 700 Ariz. Adv. Rep. 4, ¶ 18, citing


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                     STATE v. JUAREZ-ORCI
                       Opinion of the Court


State v. Amaya-Ruiz, 166 Ariz. 152, 173, 800 P.2d 1260, 1281 (1990).
His conviction on this charge therefore cannot stand. Id.

                           Disposition

¶24         For all of the foregoing reasons, we reverse Juarez-
Orci’s conviction for second-degree murder and remand for further
proceedings on that charge.       His remaining convictions and
sentences are affirmed.




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