lesser included offense instruction in Arizona

2025See Escalante, 245 Ariz. at 142, ¶ 21. ¶20 Sanders relies on State v. Wall, 212 Ariz. 1 (2006) to argue he is not precluded from a lesser-included offense instruction merely because he pursued an “all-or-nothing” defense—meaning “that he is either guilty of the charged offense or not guilty at all.” Id. at 3, ¶ 9 . 5 STATE v. SANDERS Decision of the Court ¶21 In Wall, our supreme court held the superior court abused its discretion in denying the defendant’s lesser-included offense instruction that was both requested by the defendant and supported by sufficient evidence—merely because the defen

2025See Escalante, 245 Ariz. at 142, ¶ 21. ¶20 Sanders relies on State v. Wall, 212 Ariz. 1 (2006) to argue he is not precluded from a lesser-included offense instruction merely because he pursued an “all-or-nothing” defense—meaning “that he is either guilty of the charged offense or not guilty at all.” Id. at 3, ¶ 9 . 5 STATE v. SANDERS Decision of the Court ¶21 In Wall, our supreme court held the superior court abused its discretion in denying the defendant’s lesser-included offense instruction that was both requested by the defendant and supported by sufficient evidence—merely because the defen

2023“Giving a lesser-included offense instruction mitigates that risk.” Id. ¶29 By not allowing the jurors to consider reckless manslaughter, the court denied them the “‘option of convicting on a . . . less drastic alternative’ than . . . second-degree murder, and precluded [Estevez] from receiving ‘the full benefit of the reasonable-doubt standard.’” Valenzuela, 194 Ariz. at 407 , ¶ 13 (quoting State v. Celaya, 135 Ariz. 248, 253 (1983)).

2007The jury was instructed on self-defense and told that if it found Andriano to be a domestic violence victim, “the state of mind of a reasonable person ... shall be determined from the perspective of a reasonable person who has been a victim of those past acts of domestic violence.” ¶36 We held in State v. Celaya that “where the sole defense is self-defense so that the evidence requires either conviction or acquittal, any instruction on any other grade would be impermissible.” 135 Ariz. *505 248, 255, 660 P.2d 849, 856 (1983); see also State v. Wall, 212 Ariz. 1, 6, ¶ 29 , 126 P.3d 148, 153 (20

2025Instead, the court has a duty to provide a lesser-included offense instruction only when the absence of such an instruction “would fundamentally violate [the] defendant’s right to a fair trial” and interfere with the defendant’s “ability to conduct h[er] defense.” State v. Lucas, 146 Ariz. 597, 604 (1985), overruled in part on other grounds by State v. Ives, 187 Ariz. 102 , 106–09 (1996).

2025The superior court must provide a lesser- included offense instruction only when the absence of such an instruction “would fundamentally violate [the] defendant’s right to a fair trial” and “interferes with [the] defendant’s ability to conduct his defense.” State v. Lucas, 146 Ariz. 597, 604 (1985), overruled in part on other grounds by State v. Ives, 187 Ariz. 102, 106-09 (1996).

2014“To determine whether there is sufficient evidence to require the giving of a lesser included offense instruction, the test is whether the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Jackson, 186 Ariz. 20, 27 , 918 P.2d 1038, 1045 (1996) (quoting State v. Krone, 182 Ariz. 319, 323 , 897 P.2d 621, 625 (1995)); see also State v. Bearup, 221 Ariz. 163, 168, ¶ 23 , 211 P.3d 684, 689 (2009). ¶13 On this record, the jury could not have rationally failed to find that Raimonde shot C.C. point-blank in the head intentionally, knowingly, or at a minimu

2014“To determine whether there is sufficient evidence to require the giving of a lesser included offense instruction, the test is whether the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Jackson, 186 Ariz. 20, 27 , 918 P.2d 1038, 1045 (1996) (quoting State v. Krone, 182 Ariz. 319, 323 , 897 P.2d 621, 625 (1995)); see also State v. Bearup, 221 Ariz. 163, 168, ¶ 23 , 211 P.3d 684, 689 (2009). ¶13 On this record, the jury could not have rationally failed to find that Raimonde shot C.C. point-blank in the head intentionally, knowingly, or at a minimu

2023“Giving a lesser-included offense instruction mitigates that risk.” Id. ¶29 By not allowing the jurors to consider reckless manslaughter, the court denied them the “‘option of convicting on a . . . less drastic alternative’ than . . . second-degree murder, and precluded [Estevez] from receiving ‘the full benefit of the reasonable-doubt standard.’” Valenzuela, 194 Ariz. at 407 , ¶ 13 (quoting State v. Celaya, 135 Ariz. 248, 253 (1983)).

2018HULSEY Opinion of the Court court indicated it would give RAJI 2.03 unmodified, 3 but the defense did not request that instruction and therefore it was not given. ¶52 The jury was ultimately instructed on first degree murder of a police officer and attempted first degree murder and, with respect to causation, that first degree murder required proof that the “Defendant caused the death of the law enforcement officer.” ¶53 “[A] defendant is entitled to a lesser included offense instruction where the evidence warrants it.” Beck v. Alabama, 447 U.S. 625, 636 (1980).

2023See State v. Fish, 222 Ariz. 109, 132, ¶ 79 (App. 2009) (“We will not reverse a judgment on a ground which is allegedly erroneous, even if the error was fundamental, when the appellant invited that error.”). ¶19 Olivier also has not shown prejudice from the failure to give a complete definition of the lesser-included offense because the alleged failure did not present an impediment to Olivier presenting a complete defense.

2023See State v. Fish, 222 Ariz. 109, 132, ¶ 79 (App. 2009) (“We will not reverse a judgment on a ground which is allegedly erroneous, even if the error was fundamental, when the appellant invited that error.”). ¶19 Olivier also has not shown prejudice from the failure to give a complete definition of the lesser-included offense because the alleged failure did not present an impediment to Olivier presenting a complete defense.

2009To determine whether sufficient evidence existed to require a lesser-included offense instruction, the court must examine “whether the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Detrich, 178 Ariz. 380, 383 , 873 P.2d 1302, 1305 (quoting State v. Noriega, 142 Ariz. 474, 481 , 690 P.2d 775, 782 (1984), overruled on other grounds, State v. Burge, 167 Ariz. 25 , 804 P.2d 754 (1990)).

2009To determine whether sufficient evidence existed to require a lesser-included offense instruction, the court must examine “whether the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Detrich, 178 Ariz. 380, 383 , 873 P.2d 1302, 1305 (quoting State v. Noriega, 142 Ariz. 474, 481 , 690 P.2d 775, 782 (1984), overruled on other grounds, State v. Burge, 167 Ariz. 25 , 804 P.2d 754 (1990)).

2022As 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).

2018As 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).

2003State v. Kinkade, 147 Ariz. 250, 253 , 709 P.2d 884, 887 (1985). ¶ 68 When a defendant requests a lesser included offense instruction that is supported by the evidence, failure to give the requested instruction constitutes fundamental error if the failure impedes the defendant’s ability to present his defense.

2003State v. Kinkade, 147 Ariz. 250, 253 , 709 P.2d 884, 887 (1985). ¶ 68 When a defendant requests a lesser included offense instruction that is supported by the evidence, failure to give the requested instruction constitutes fundamental error if the failure impedes the defendant’s ability to present his defense.

2023See Valenzuela, 194 Ariz. at 407, ¶ 13 ; see also State v. Harvill, 106 Ariz. 386, 391 (1970) (A jury may consider direct and circumstantial evidence equally.); State v. Riley, 12 Ariz. App. 336, 337 (1970) (“Circumstantial evidence is the proof of the existence of some fact from which fact the existence of the thing in issue may be legally and logically inferred.”). ¶23 At the trial, the State advocated for second-degree murder under three mental states, including recklessness.

2023“Giving a lesser-included offense instruction mitigates that risk.” Id. ¶29 By not allowing the jurors to consider reckless manslaughter, the court denied them the “‘option of convicting on a . . . less drastic alternative’ than . . . second-degree murder, and precluded [Estevez] from receiving ‘the full benefit of the reasonable-doubt standard.’” Valenzuela, 194 Ariz. at 407 , ¶ 13 (quoting State v. Celaya, 135 Ariz. 248, 253 (1983)).

2006The court ruled that a lesser-included offense *6 instruction is not appropriate “when the ‘defendant’s theory of the case denies all involvement in the killing, and [when] no evidence provides a basis for a second degree murder conviction, ... [and] the record is such that defendant is either guilty of the crime charged or not guilty.’ ” Id. ¶ 14 (quoting State v. Salazar, 173 Ariz. 399, 408 , 844 P.2d 566, 575 (1992)) (alteration in original) (emphasis added). ¶ 28 Van Adams thus did not establish a bright-line rule that a lesser-included offense instruction is never proper if a defendant ha

2006The court ruled that a lesser-included offense *6 instruction is not appropriate “when the ‘defendant’s theory of the case denies all involvement in the killing, and [when] no evidence provides a basis for a second degree murder conviction, ... [and] the record is such that defendant is either guilty of the crime charged or not guilty.’ ” Id. ¶ 14 (quoting State v. Salazar, 173 Ariz. 399, 408 , 844 P.2d 566, 575 (1992)) (alteration in original) (emphasis added). ¶ 28 Van Adams thus did not establish a bright-line rule that a lesser-included offense instruction is never proper if a defendant ha

2021State v. Laffoon, 125 Ariz. 484, 487 (1980) (“Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be found.”); State v. Robles, 213 Ariz. 268, 271, ¶ 9 (App. 2006) (declining to extend language in case law “to encompass or mandate consideration of all facts ultimately contained in the record in determining whether a lesser-included-offense instruction was required”); State v. Brown, 195 Ariz. 206, 209, ¶ 10 (App. 1999) (“[I]t is the charging document and not the evidence that determines the issue . . . .”); State v. Teran, 130 Ariz

2006See Brown, 195 Ariz. 206, ¶ 10 , 986 P.2d at 242 (“[I]t is the charging document and not the evidence that determines the issue.”); State v. Teran, 130 Ariz. 277, 279 , 635 P.2d 870, 872 (App.1981) (“The test which determines the appropriateness of a lesser included instruction and verdict form by an analysis of the facts of a given case, i.e., the evidentiary test ... is not followed in Arizona.”); see also State v. Laffoon, 125 Ariz. 484, 487 , 610 P.2d 1045, 1048 (1980) (“Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be fo

2021State v. Laffoon, 125 Ariz. 484, 487 (1980) (“Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be found.”); State v. Robles, 213 Ariz. 268, 271, ¶ 9 (App. 2006) (declining to extend language in case law “to encompass or mandate consideration of all facts ultimately contained in the record in determining whether a lesser-included-offense instruction was required”); State v. Brown, 195 Ariz. 206, 209, ¶ 10 (App. 1999) (“[I]t is the charging document and not the evidence that determines the issue . . . .”); State v. Teran, 130 Ariz

2006See Brown, 195 Ariz. 206, ¶ 10 , 986 P.2d at 242 (“[I]t is the charging document and not the evidence that determines the issue.”); State v. Teran, 130 Ariz. 277, 279 , 635 P.2d 870, 872 (App.1981) (“The test which determines the appropriateness of a lesser included instruction and verdict form by an analysis of the facts of a given case, i.e., the evidentiary test ... is not followed in Arizona.”); see also State v. Laffoon, 125 Ariz. 484, 487 , 610 P.2d 1045, 1048 (1980) (“Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be fo

2021State v. Laffoon, 125 Ariz. 484, 487 (1980) (“Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be found.”); State v. Robles, 213 Ariz. 268, 271, ¶ 9 (App. 2006) (declining to extend language in case law “to encompass or mandate consideration of all facts ultimately contained in the record in determining whether a lesser-included-offense instruction was required”); State v. Brown, 195 Ariz. 206, 209, ¶ 10 (App. 1999) (“[I]t is the charging document and not the evidence that determines the issue . . . .”); State v. Teran, 130 Ariz

2006See Brown, 195 Ariz. 206, ¶ 10 , 986 P.2d at 242 (“[I]t is the charging document and not the evidence that determines the issue.”); State v. Teran, 130 Ariz. 277, 279 , 635 P.2d 870, 872 (App.1981) (“The test which determines the appropriateness of a lesser included instruction and verdict form by an analysis of the facts of a given case, i.e., the evidentiary test ... is not followed in Arizona.”); see also State v. Laffoon, 125 Ariz. 484, 487 , 610 P.2d 1045, 1048 (1980) (“Often facts may support another lesser conviction but if not charged in the indictment, the lesser offense may not be fo

2015See id. ¶ 80. ¶ 20 In Wall , decided the year before Speers’s trial, our supreme court clarified that “evidence in the record can be sufficient to require a lesser-included offense instruction even when the defendant employs an all- or-nothing defense,” although, “[a]s a practical matter, when a defendant asserts an all- or-nothing defense such as alibi or mistaken identity, there will ‘usually [be] little evidence on the record to support an instruction on the lesser included offenses.’” 212 Ariz. 1, ¶¶ 29-30 , 126 P.3d at 153 , quoting State v. Caldera, 141 Ariz. 634, 637 , 688 P.2d 642, 645

2015See id. ¶ 80. ¶ 20 In Wall , decided the year before Speers’s trial, our supreme court clarified that “evidence in the record can be sufficient to require a lesser-included offense instruction even when the defendant employs an all- or-nothing defense,” although, “[a]s a practical matter, when a defendant asserts an all- or-nothing defense such as alibi or mistaken identity, there will ‘usually [be] little evidence on the record to support an instruction on the lesser included offenses.’” 212 Ariz. 1, ¶¶ 29-30 , 126 P.3d at 153 , quoting State v. Caldera, 141 Ariz. 634, 637 , 688 P.2d 642, 645

2017“To determine whether there is sufficient evidence to require the giving of a lesser included offense instruction, the test is 4 STATE v. RAMOS-RAMIREZ Decision of the Court whether the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Jackson, 186 Ariz. 20, 27 (1996) (internal quotation marks and citations omitted). ¶12 In this case, the evidence was not such that a jury could reasonably find that Ramos-Ramirez had committed attempted child molestation.

2015“To determine whether there is sufficient evidence to require the giving of a lesser included offense instruction, the test is whether the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Jackson, 186 Ariz. 20, 27 , 918 P.2d 1038, 1045 (1996). ¶9 No jury could have reasonably found that Multari intended only to disturb R.C.’s peace, in light of his admission that he fired a shot through the driver’s-side window intending to injure the driver.

2013See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 , 115 P.3d 601, 607 (2005). ¶ 15 Concerning the lesser-included offense of robbery, Larin essentially makes the same arguments that he made in support of the lesser-included offense instruction for second-degree burglary.

2013See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 , 115 P.3d 601, 607 (2005). ¶ 15 Concerning the lesser-included offense of robbery, Larin essentially makes the same arguments that he made in support of the lesser-included offense instruction for second-degree burglary.

2009Thus, a lesser-included offense instruction is required if the jury could “find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense.” Wall, 212 Ariz. at 4, ¶ 18 , 126 P.3d at 151 (citing State v. Caldera, 141 Ariz. 634, 636-37 , 688 P.2d 642, 644-45 (1984)). ¶ 24 Unlawful imprisonment, a lesser-included offense of kidnapping, is defined as “knowingly restraining another person.” A.R.S. § 13-1303(A); see State v. Bolton, 182 *169 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

2009Thus, a lesser-included offense instruction is required if the jury could “find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense.” Wall, 212 Ariz. at 4, ¶ 18 , 126 P.3d at 151 (citing State v. Caldera, 141 Ariz. 634, 636-37 , 688 P.2d 642, 644-45 (1984)). ¶ 24 Unlawful imprisonment, a lesser-included offense of kidnapping, is defined as “knowingly restraining another person.” A.R.S. § 13-1303(A); see State v. Bolton, 182 *169 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

1984“The evidence, however, must support the giving of a lesser-included offense instruction which may not be given when the state of the evidence is such that the defendant can only be guilty of the crime charged or not guilty at all.” State v. McNair, 141 Ariz. 475, 482 , 687 P.2d 1230, 1237 (1984).

1984“The evidence, however, must support the giving of a lesser-included offense instruction which may not be given when the state of the evidence is such that the defendant can only be guilty of the crime charged or not guilty at all.” State v. McNair, 141 Ariz. 475, 482 , 687 P.2d 1230, 1237 (1984).

2025Instead, the court has a duty to provide a lesser-included offense instruction only when the absence of such an instruction “would fundamentally violate [the] defendant’s right to a fair trial” and interfere with the defendant’s “ability to conduct h[er] defense.” State v. Lucas, 146 Ariz. 597, 604 (1985), overruled in part on other grounds by State v. Ives, 187 Ariz. 102 , 106–09 (1996).

2025The superior court must provide a lesser- included offense instruction only when the absence of such an instruction “would fundamentally violate [the] defendant’s right to a fair trial” and “interferes with [the] defendant’s ability to conduct his defense.” State v. Lucas, 146 Ariz. 597, 604 (1985), overruled in part on other grounds by State v. Ives, 187 Ariz. 102, 106-09 (1996).

2024Logan, 200 Ariz. at 566 , ¶ 11 (citing State v. Tassler, 159 Ariz. 183, 185 (App. 1988)); see also Lucero, 223 Ariz. at 136, ¶ 20 (“expressly requesting the superior court not to give a lesser-included offense instruction amounts to invited error.”).

2009Id. at 565-66, ¶ 9 , 30 P.3d at 632-33 . 17 ¶ 81 Defendant attempts to avoid the invited error doctrine by arguing that once the superior court instructed the jury on reckless second degree murder, “it was required to also give manslaughter as a lesser included offense instruction regardless of whether Fish objected to the State’s motion for the manslaughter instruction.” Defendant knew the court was going to give a reckless second degree murder instruction and, with that knowledge, did not then ask the court to give a manslaughter instruction.

2009To determine whether sufficient evidence existed to require a lesser-included offense instruction, the court must examine “whether the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Detrich, 178 Ariz. 380, 383 , 873 P.2d 1302, 1305 (quoting State v. Noriega, 142 Ariz. 474, 481 , 690 P.2d 775, 782 (1984), overruled on other grounds, State v. Burge, 167 Ariz. 25 , 804 P.2d 754 (1990)).

2009To determine whether sufficient evidence existed to require a lesser-included offense instruction, the court must examine “whether the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Detrich, 178 Ariz. 380, 383 , 873 P.2d 1302, 1305 (quoting State v. Noriega, 142 Ariz. 474, 481 , 690 P.2d 775, 782 (1984), overruled on other grounds, State v. Burge, 167 Ariz. 25 , 804 P.2d 754 (1990)).

1985“A lesser-included offense instruction need not be given when the state of the evidence is such that the defendant can only be guilty of the crime charged or not guilty at all.” State v. Williams, 144 Ariz. 479, 486 , 698 P.2d 724, 731 (1985).

1985“A lesser-included offense instruction need not be given when the state of the evidence is such that the defendant can only be guilty of the crime charged or not guilty at all.” State v. Williams, 144 Ariz. 479, 486 , 698 P.2d 724, 731 (1985).

2024An error is invited when the defendant takes “independent affirmative unequivocal action to initiate the error and did not merely fail to object to the error or merely acquiesce in it.” State v. Lucero, 223 Ariz. 129, 136, ¶¶ 20-21 (App. 2009). ¶28 Here, Cordova-Wilkins expressly told the superior court he did not want a lesser-included offense instruction.

2024Logan, 200 Ariz. at 566 , ¶ 11 (citing State v. Tassler, 159 Ariz. 183, 185 (App. 1988)); see also Lucero, 223 Ariz. at 136, ¶ 20 (“expressly requesting the superior court not to give a lesser-included offense instruction amounts to invited error.”).

2021See State v. Whittle, 156 Ariz. 405, 407 (1988) (recognizing the defense strategy 2 The State argues the superior court did not err because, under State v. Carter, 249 Ariz. 312 , 315–16, ¶¶ 9–11 (2020), contributing to the delinquency of a child should no longer be considered a lesser-included offense of child molestation. ”Because evidence of the elements of molestation will always be sufficient to prove the elements of contributing to the delinquency of a [child], contributing to the delinquency of a [child] remains a lesser-included offense of molestation.” State v. Agueda, 250 Ariz. 504 ,

2016Crim. 6 STATE v. KIRBY Decision of the Court P. 21.3(c) ("No party may assign as error on appeal the court's giving or failing to give any instruction . . . unless the party objects thereto before the jury retires to consider its verdict[.]"); State v. Dickens, 187 Ariz. 1 , 22–23 (1996), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 242-43 (2012). ¶20 In a noncapital case, the superior court has a duty to provide a lesser-included offense instruction sua sponte only when the absence of such an instruction "would fundamentally violate [the] defendant's right to a fair trial."

1983In State v. Jer-ousek, 121 Ariz. 420 , 590 P.2d 1366 (1979), the Supreme Court found that the evidence did not support the giving of a lesser included offense instruction on contributing to the delinquency of a minor where “the defendant pled not guilty but presented no alternative explanation for his actions.

1983In State v. Jer-ousek, 121 Ariz. 420 , 590 P.2d 1366 (1979), the Supreme Court found that the evidence did not support the giving of a lesser included offense instruction on contributing to the delinquency of a minor where “the defendant pled not guilty but presented no alternative explanation for his actions.

1992See, e.g., Celaya, 135 Ariz. at 253 , 660 P.2d at 854 (“Where a defense theory is reasonably supported by the evidence, it is reversible error not to give [the lesser included offense instruction]____”) (emphasis added); State v. Schroeder, 95 Ariz. 255, 259 , 389 P.2d 255, 257 (1964) (lesser included offense instructions are justified only when evidence exists upon which the jury could convict defendant of a lesser offense).

1992See, e.g., Celaya, 135 Ariz. at 253 , 660 P.2d at 854 (“Where a defense theory is reasonably supported by the evidence, it is reversible error not to give [the lesser included offense instruction]____”) (emphasis added); State v. Schroeder, 95 Ariz. 255, 259 , 389 P.2d 255, 257 (1964) (lesser included offense instructions are justified only when evidence exists upon which the jury could convict defendant of a lesser offense).

1989Lamb, 142 Ariz. at 472 , 690 P.2d at 773 .

1989Lamb, 142 Ariz. at 472 , 690 P.2d at 773 .