State v. Gipson, 277 P.3d 189 (Ariz. 2012). · Go Syfert
State v. Gipson, 277 P.3d 189 (Ariz. 2012). Cases Citing This Book View Copy Cite
49 citation events (49 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 2014 → 2026 · click a year to view as-of
2014 2020 2026
Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) State v. Reagor
Ariz. Ct. App. · 2025 · quote attribution · 1 verbatim quote · confidence high
the trial judge should withhold charging on lesser included offenses unless one of the parties requests it.
discussed Cited as authority (quoted) State v. Interval
Ariz. Ct. App. · 2024 · quote attribution · 1 verbatim quote · confidence low
the defendant is on notice from the beginning of the proceedings against him that the jury may be asked to consider any lesser included offenses.
discussed Cited as authority (rule) State v. Bonds
Ariz. Ct. App. · 2026 · confidence medium
Under Rule 13.1(e), "the defendant is on notice from the beginning of the proceedings against him that the jury may be asked to consider any lesser included offenses supported by the trial evidence." State v. Gipson, 229 Ariz. 484, 487, ¶ 14 (2012).
cited Cited as authority (rule) State v. Sanders
Ariz. Ct. App. · 2025 · confidence medium
State v. Gipson, 229 Ariz. 484, 486-87, ¶¶ 13, 15-16 (2012).
cited Cited as authority (rule) State v. Peterson
Ariz. Ct. App. · 2025 · confidence medium
State v. Gipson, 229 Ariz. 484, 486, ¶ 13 (2012).
cited Cited as authority (rule) State v. Schaeffer
Ariz. Ct. App. · 2025 · confidence medium
State v. Gipson, 229 Ariz. 484, 486, ¶ 13 (2012).
discussed Cited as authority (rule) Rider v. Profiri
D. Ariz. · 2023 · confidence medium
There is no error in the R&R’s analysis and review of the appellate 19 court decision, which was the last adjudication of these claims on their merits. 20 Regarding the second-degree murder charge instruction, the appeals court correctly 21 noted that Arizona law allows for an instruction “on any lesser-included offense supported 22 by the evidence” and for a second-degree murder instruction “when a reasonable 23 construction of the evidence tends to show a lack of premeditation.” (Doc. 11-2 at 278 24 citing State v. Gipson, 229 Ariz. 484, 487, ¶ 17 (2012) and State v. Sprang, 227 A…
discussed Cited as authority (rule) State v. Medlin (2×)
Ariz. Ct. App. · 2022 · confidence medium
As the Arizona Supreme Court stated: “When both parties object to a lesser included offense instruction, the trial court should be loath to give it absent compelling circumstances to the contrary.” State v. Gipson, 229 Ariz. 484, 487, ¶ 17 (2012).
discussed Cited as authority (rule) State v. Calderon
Ariz. Ct. App. · 2018 · confidence medium
As the Arizona Supreme Court has stated, “[w]hen both parties object to a lesser included offense instruction, the trial court should be loath to give it absent compelling circumstances to the contrary.” State v. Gipson, 229 Ariz. 484, 487, ¶ 17 (2012).
discussed Cited as authority (rule) State v. Ramos-Ramirez (2×) also: Cited "see, e.g."
Ariz. Ct. App. · 2017 · confidence medium
“An offense is necessarily included when it is lesser included and the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.” Gipson, 229 Ariz. at 486, ¶ 14, n. 2 (internal quotation marks and citation omitted).
cited Cited as authority (rule) State v. Taylor
Ariz. Ct. App. · 2017 · confidence medium
State v. Gipson, 229 Ariz. 484, 487, ¶ 17 (2012).
cited Cited as authority (rule) State v. Azar
Ariz. Ct. App. · 2017 · confidence medium
State v. Gipson, 229 Ariz. 484, 486, ¶ 13 (2012); see Ariz. R.
examined Cited as authority (rule) State of Arizona v. Christepher E. Lua (6×) also: Cited "see", Cited "see, e.g."
Ariz. · 2015 · confidence medium
Nothing in the current statutes or their histories suggests that the legislature intended to change the former statutory distinction between second-degree murder and voluntary manslaughter or to bar a jury instruction and finding on provocation manslaughter in a second-degree murder case. ¶ 13 In addition to effecting the legislature’s intent, our conclusion furthers the “societal interest in ‘avoiding the unjustified exoneration of wrongdoers and in punishing a defendant only to the extent of his crime.’ ” State v. Gipson, 229 Ariz. 484 , 487 ¶ 16, 277 P.3d 189, 192 (2012) (quotin…
discussed Cited as authority (rule) State v. Erivez (2×)
Ariz. Ct. App. · 2015 · confidence medium
As a result, a “defendant is on notice from the beginning of the proceedings against him that the jury may be asked to consider any lesser-included offenses supported by the trial evidence.” State v. Gipson, 229 Ariz. 484, 486-87, ¶ 14 , 277 P.3d 189, 191-92 (2012). ¶22 Finally, Erivez contends the court erred by disregarding the assault conviction and sentencing him solely on the disorderly conduct conviction. ¶ 23 Erivez was originally charged in count six with one count of aggravated assault; however, the jury ultimately convicted Erivez of two independent lesser-included offenses as…
examined Cited as authority (rule) State v. Raimonde (3×) also: Cited "see"
Ariz. Ct. App. · 2014 · confidence medium
“An offense is necessarily included ‘when it is lesser included’ and ‘the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.’” State v. Gipson, 229 Ariz. 484, 486, ¶ 14, n.2 , 277 P.3d 189 , 191 n.2 (2012) (quoting Wall, 212 Ariz. at 3, ¶ 14 , 126 P.3d at 150 ).
discussed Cited as authority (rule) State of Arizona v. Eslyn Adrian Villa (2×)
Ariz. Ct. App. · 2014 · confidence medium
P., requires the trial court to submit forms of verdict to the jury “for all offenses necessarily included in the offense charged.” See State v. Gipson, 229 Ariz. 484, ¶¶ 14, 17 , 277 P.3d 189, 191-92 (2012) (not error for court to instruct on lesser-included offenses supported by evidence over party’s objection).
discussed Cited "see" State v. Jones
Ariz. Ct. App. · 2024 · signal: see · confidence high
See State v. Gipson, 229 Ariz. 484, 486, ¶ 9 (2012) (explaining the duty of a trial court presiding over a capital case to sua sponte instruct on all lesser-included offenses supported by the evidence does not preclude the defendant from objecting and waiving any right to the lesser-included instruction). 3 3 In State v. Brown, 1 CA-CR 23-0123, at *8, ¶ 25 (Ariz. App. Sept. 10, 2024), this court recently held that “trial courts have no sua sponte duty to instruct the jury on justification defenses that have not been requested.” Notably, in Brown, defense “counsel did not argue self-def…
discussed Cited "see" State v. Etienne
Ariz. Ct. App. · 2022 · signal: accord · confidence high
See Wall, 212 Ariz. at 3, ¶¶ 13-14 (noting the trial court is required to instruct only on “necessarily included offenses”); accord State v. Gipson, 229 Ariz. 484, 486 , ¶ 14 n.2 (2012) (“An offense is necessarily included ‘when it is lesser included’ and ‘the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.’” (quoting Wall, 212 Ariz. at 3, ¶ 14 )). ¶34 Etienne also asserts the trial court erred by denying his request for a causation instruction under Revised Arizona Jury Instruc…
discussed Cited "see" State v. Wilkins
Ariz. Ct. App. · 2022 · signal: see · confidence high
See State v. Tschilar, 200 Ariz. 427, 437, ¶ 39 (App. 2001). ¶22 “In general the trial judge should withhold charging on lesser included offense[s] unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics.” State v. Gipson, 229 Ariz. 484, 487, ¶ 15 (2012) (citations and internal quotation marks omitted).
discussed Cited "see" State v. Jarrett (2×)
Ariz. Ct. App. · 2014 · signal: see · confidence high
Vanderlinden, 111 Ariz. at 379-80 , 530 P.2d at 1108-09 ; see State v. Gipson, 229 Ariz. 484, 486, ¶ 13 , 277 P.3d 189, 191 (2012) (explaining former requirement that trial courts instruct on every lesser- included offense supported by the evidence was “abandoned through an amendment to Arizona Rule of Criminal Procedure 21.3(c).”); see also State v. Krone, 182 Ariz. 319, 323 , 897 P.2d 621, 625 (1995) (“A defendant should not have a lesser included instruction forced upon him.”).
discussed Cited "see, e.g." State v. Rodriguez
Ariz. Ct. App. · 2025 · signal: see also · confidence medium
P. 21.4(a)(1) (“On request by any party and if supported by the evidence, the court must submit forms of verdicts to the jury for [] all offenses necessarily included in the offense charged . . . .”) (emphasis added); see also State v. Gipson, 229 Ariz. 484, 487, ¶ 15 (2012) (“In general the trial judge should withhold charging on lesser included offenses unless one of the parties requests it . . . .”) (quoting Walker v. United States, 418 F.2d 1116, 1119 (D.C.
discussed Cited "see, e.g." State of Arizona v. Bobby Ray Carter Jr
Ariz. · 2020 · signal: see also · confidence low
Rev. 1103 , 1110 (2009) (“The statutory elements approach used by a majority of jurisdictions and the federal system is identical to the test for determining which offenses are the ‘same offense’ for double jeopardy purposes.”); see also State v. Gipson, 229 Ariz. 484 , 486 ¶ 14 n.2 (2012) (“An offense is necessarily included ‘when it is lesser included’ . . . .” (citation omitted)); State v. Celaya, 135 Ariz. 248, 251 (1983).
discussed Cited "see, e.g." State v. Timlick
Ariz. Ct. App. · 2019 · signal: see also · confidence medium
Id.; see also State v. Gipson, 229 Ariz. 484, 487, ¶ 15 (2012) (trial court should generally withhold lesser-included offense instruction unless requested by one of the parties).
discussed Cited "see, e.g." State v. Bithell (2×)
Ariz. Ct. App. · 2017 · signal: see also · confidence low
See, e.g., State v. Engram, 171 Ariz. 363, 367 , 831 P.2d 362 , 6 STATE v. BITHELL Decision of the Court 368 (App. 1991) (supp. op); see also State v. Gipson, 229 Ariz. 484, 487 , 277 P.3d 189, 192 (2012) (quoting Walker v. United States, 418 F.2d 1116, 1119 (D.C.
discussed Cited "see, e.g." State of Arizona v. Anthony Connue Serrano (2×)
Ariz. Ct. App. · 2014 · signal: see also · confidence low
See, e.g., State v. Claboume, 142 Ariz. 335, 346 , 690 P.2d 54, 65 (1984) (preparation of new pre-sentence report); State v. Romo, 111 Ariz. 70, 70 , 523 P.2d 501, 501 (1974) (postponement of sentencing for competency examination); State v. Longoria, 123 Ariz. 7, 10 , 596 P.2d 1179, 1182 (App.1979) (severance, continuance, or mistrial); see also State v. Gipson, 229 Ariz. 484, ¶ 15 , 277 P.3d 189, 192 (2012) (noting adversary system permits counsel to choose tactics).
Retrieving the full opinion text from the archive…
STATE of Arizona, Appellee,
v.
Gary Wayne GIPSON, Jr., Appellant
CR-11-0282-PR.
Arizona Supreme Court.
May 31, 2012.
277 P.3d 189
Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, Barbara A. Bailey, Assistant Attorney General, Joseph T. Maziarz, Assistant Attorney General, Phoenix, Attorneys for State of Arizona., Dwane Cates Law Group, PLLC by Dwane M. Cates, Phoenix, Attorneys for Gary Wayne Gipson, Jr.
Hurwitz, Berch, Bales, Pelander, Brutinel.
Cited by 28 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 78%
Citer courts: Court of Appeals of Arizona (1)

OPINION

HURWITZ, Vice Chief Justice.

¶ 1 We are asked to decide whether a trial judge may instruct a jury on a lesser included offense supported by the evidence over objections from the defense and the prosecution. We hold that, although a judge should hesitate to give the instruction in such circumstances, it was not reversible error in this ease to do so.

I.

¶ 2 Gary Wayne Gipson, Jr. and Billy Joe Huff, Jr. had a financial dispute about a business venture. [1] Huff, accompanied by his father, drove to Gipson’s house to resolve matters.

¶ 3 Huff went to the door while his father waited in the car. When Gipson came outside, he exchanged words with Huff and punched him. After Huff hit Gipson back, Gipson pulled out a gun and shot Huff. Huff ran toward the ear and Gipson fired several more shots, one of which hit Huff in the back. Huff died in the hospital that night.

¶ 4 Gipson was indicted for first degree murder, illegal discharge of a firearm, and aggravated assault. The State did not seek the death penalty. At trial, the judge sua sponte instructed the jury on second degree murder over Gipson’s objection and on manslaughter over the objections of both Gipson and the State. The jury acquitted Gipson of first degree murder and was unable to reach a verdict on second degree murder, but found Gipson guilty of manslaughter. The jury was unable to reach a verdict on aggravated assault, but found Gipson guilty on the firearms charge.

¶ 5 On appeal, Gipson conceded that the evidence supported the manslaughter instruction, but argued that the trial judge erred by giving it over the objections of both parties. State v. Gipson, No. 1 CA-CR 10-0381, 2011 WL 3211057, at *1 ¶ 9 (Ariz.App. July 28, 2011) (mem. decision). The court of appeals affirmed, finding “no authority for Gipson’s contention that a court errs by choosing to give a proper lesser-included instruction over both sides’ objections.” Id.

¶ 6 We granted review to resolve an issue of statewide importance. We have jurisdiction under Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24 (2003).

II.

A.

¶ 7 Gipson first argues that he had an absolute right to present an “all or nothing” defense to the first degree murder charge. He cites State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995), in which we said that “[a] defendant should not have a lesser included instruction forced upon him,” and State v. Rodriguez, 186 Ariz. 240, 249, 921 P.2d 643, 652 (1996), in which we said that “[i]f [the defendant] objects, the instruction should not be given.”

¶8 Krone and Rodriguez, however, were capital cases. In each case, this Court discussed the trial court’s obligation in capital cases under Beck v. Alabama 447 U.S. 625, 644-45, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), to instruct on lesser included offenses. In State v. Vickers, this Court interpreted Beck to require sua sponte instructions in capital eases on all lesser included offenses supported by the evidence. 129 Ariz. 506, 513, 633 P.2d 315, 322 (1981). In Krone and Rodriguez, the defendants claimed that the trial court had violated the Beck rule. Krone, 182 Ariz. at 323, 897 P.2d at 625; Rodriguez, 186 Ariz. at 249, 921 P.2d at 652.

[*486] ¶ 9 In response, we clarified that the Beck rule is not absolute. See Krone, 182 Ariz. at 323, 897 P.2d at 625 (“[E]ven when otherwise warranted by the evidence, Beck does not always require a lesser included instruction.”) (citing Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984)). Taken to its logical conclusion, Beck would require a lesser included offense instruction even when the defendant objected to it. But, because “the Beck rule rests on the premise that a lesser included offense instruction in a capital case is of benefit to the defendant,” Spaziano, 468 U.S. at 456, 104 S.Ct. 3154, such an approach would make no sense. It was in this context that we said that “[a] defendant should not have a lesser included instruction forced upon him.” Krone, 182 Ariz. at 323, 897 P.2d at 625. Thus, a defendant may waive any right to a lesser included instruction in a capital ease by objecting to the instruction; the trial judge is not bound by Beck to give the instruction under such circumstances.

¶ 10 Rodriguez illustrates the point. There, the defendant submitted a request for lesser included instructions, but later withdrew it. 186 Ariz. at 249, 921 P.2d at 652. Accordingly, the trial court instructed “only on first degree murder.” Id. On appeal, Rodriguez claimed that the court’s failure to instruct sua sponte on second degree murder violated the rule in Beck. Because withdrawal of a requested instruction is “tantamount to an objection to the instruction,” however, we found that the trial judge was relieved of any obligation to give the instruction. Id.

¶ 11 Gipson’s reading of Krone and Rodriguez as affording a defendant the absolute right to an “all or nothing” defense thus interprets those cases too broadly. See State v. Cruz, 189 Ariz. 29, 32, 938 P.2d 78, 81 (App.1996) (observing that Krone and Rodriguez “do not control whether the court must refuse to instruct on lesser-ineluded offenses when the state requests those instructions, and the defendant objects”). Indeed, our rules make clear that the State is entitled to lesser included instructions when the evi-denee so warrants. See Ariz. R.Crim. P. 13.2(c) cmt. (noting that Rule 13.2(c) “clarifies the prosecutor’s right to request instructions as to necessarily included offenses”); Ariz. R.Crim. P. 23.3 cmt. (“Rules 13.2(c) and 23.3 make clear that the prosecutor ... is entitled to an instruction on any offense for which there is evidentiary support and for which a verdict form is submitted to the jury.”).

B.

¶ 12 Alternatively, Gipson argues that the trial judge erred by instructing on manslaughter over both parties’ objections. This argument also fails.

¶ 13 We once required trial judges to instruct on every lesser included offense supported by the evidence in all homicide eases, whether or not such an instruction was requested. See State v. Madden, 104 Ariz. 111, 114, 449 P.2d 39, 42 (1969). But that approach was subsequently abandoned through an amendment to Arizona Rule of Criminal Procedure 21.3(c). See Ariz. R.Crim. P. 21.3(c) cmt. Gipson argues that because judges are no longer invariably required in non-capital cases to instruct on lesser included offenses supported by the evidence, they are prohibited from doing so when both parties object to the instruction.

¶ 14 That argument finds no support in our rules. To the contrary, Rule 23.3 provides that “[fjorms of verdict shall be submitted to the jury for all offenses necessarily included in the offense charged.” [2] M-though Rule 23.3 does not mandate that a lesser included offense instruction be submitted over the objections of the defendant and the state, it plainly does not preclude the trial judge, in the exercise of his discretion, from doing so. Moreover, Rule 13.2(c) provides that “[specification of an offense in an indictment, information, or complaint shall constitute a charge of that offense and of all offenses necessarily included therein.” Thus, the defendant is on notice from the beginning of the proceedings against him that the jury[*487] may be asked to consider any lesser included offenses supported by the trial evidence. [3]

¶ 15 We do not suggest that, in exercising their discretion, trial judges should ignore the objections of both the defendant and the state to a lesser included offense instruction. “In general the trial judge should withhold charging on lesser included offense[s] unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics.” Walker v. United States, 418 F.2d 1116, 1119 (D.C.Cir.1969); accord State v. Cox, 851 A.2d 1269, 1273-74 (Del.2003); Hagans v. State, 316 Md. 429, 559 A.2d 792, 804 (1989).

¶ 16 Gipson cites no ease, however, in which an appellate court has reversed a conviction solely because a trial judge gave a lesser included instruction that was supported by the evidence. Nor have we discovered any such case. Indeed, in People v. Garcia, the Illinois Supreme Court, while cautioning trial judges to “exercise restraint” in instructing sua sponte on lesser included offenses, refused to reverse a conviction on this ground. 188 Ill.2d 265, 242 Ill.Dec. 295, 721 N.E.2d 574, 582-83 (1999) (noting the societal interest in “avoiding the unjustified exoneration of wrongdoers and in punishing a defendant only to the extent of his crime”).

¶ 17 We agree with the approach taken by the Garcia court. When both parties object to a lesser included offense instruction, the trial court should be loath to give it absent compelling circumstances to the contrary. But if the instruction is given and supported by the evidence, a resultant conviction for the lesser included offense does not violate the defendant’s constitutional rights or contravene any Arizona statute or rule. Because the manslaughter instruction in this case was supported by the evidence, Gipson’s conviction must stand.

III.

¶ 18 For the reasons above, we affirm the memorandum decision of the court of appeals and affirm Gipson’s convictions and sentences.

CONCURRING: REBECCA WHITE BERCH, Chief Justice, W. SCOTT BALES, A JOHN PELANDER and ROBERT M. BRUTINEL, Justices.
1

. "We view the facts in the light most favorable to upholding the verdicts." State v. Chappell, 225 Ariz. 229, 233 ¶ 2 n. 1, 236 P.3d 1176, 1180 n. 1 (2010).

2

. An offense is necessarily included "when it is lesser included” and "the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved.” State v. Wall, 212 Ariz. 1, 3 ¶ 14, 126 P.3d 148, 150 (2006).

3

. Gipson does not claim that the State had suggested before instructions were settled that it did not intend to pursue a manslaughter conviction. Thus, we are not confronted today with a case in which the defendant was surprised by or unable to prepare a defense to the necessarily included charge. Cf. Ramsey v. State, 996 A.2d 782 (Del.2010) (reversing a conviction for a lesser included offense after a bench trial in which the judge considered the offense without giving notice to the defendant).