lesser included instruction in Arizona

2025See Krone, 182 Ariz. at 323 (“A defendant should not have a lesser included instruction forced upon h[er].”).

2025See Krone, 182 Ariz. at 323 (“A defendant should not have a lesser included instruction forced upon him.”).

2023See State v. Wall, 212 Ariz. 1, 4, ¶ 18 (2006) (A defendant is entitled to a lesser-included instruction if the jury could find he committed the lesser offense but not the greater offense.); see also A.R.S. § 13-1203(A)(2) (A person commits assault by “[i]ntentionally placing another person in reasonable apprehension of imminent physical injury.”); A.R.S. § 13-1204(A)(2) (A person commits aggravated assault if the person commits assault under A.R.S. § 13-1203 and “uses a deadly weapon or dangerous instrument.”). ¶26 Herndon has thus failed to prove prejudice and is not entitled to relief.

2023A defendant is entitled to a lesser-included instruction if the jury could find “(a) that the State failed to prove an element of the 5 STATE v. ESTEVEZ Decision of the Court greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense.” State v. Wall, 212 Ariz. 1, 4, ¶ 18 (2006). ¶19 As relevant here, and as instructed by the superior court, a person commits second-degree murder if “[u]nder circumstances manifesting extreme indifference to human life, the person recklessly engages in conduct that creates a grave risk of death and thereby causes the dea

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

2012We review the statutes at issue to determine if the lesser crime is “composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251 , 660 P.2d 849, 852 (1983); see also State v. Dugan, 125 Ariz. 194, 195 , 608 P.2d 771, 772 (1980) (explaining that a lesser-included instruction is proper only when the greater crime requires the jury to find a disputed factual element which is not required for conviction of the lesser crime) (citation omitted). ¶ 5

2012We review the statutes at issue to determine if the lesser crime is “composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251 , 660 P.2d 849, 852 (1983); see also State v. Dugan, 125 Ariz. 194, 195 , 608 P.2d 771, 772 (1980) (explaining that a lesser-included instruction is proper only when the greater crime requires the jury to find a disputed factual element which is not required for conviction of the lesser crime) (citation omitted). ¶ 5

2024See 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-defense or

2014Vanderlinden, 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.”).

2023A. Lesser-included instruction for provocation manslaughter ¶28 The trial court instructed the jury on manslaughter as a lesser- included offense of murder as provided in State v. LeBlanc, 186 Ariz. 437, 438 (1996), directing the jury that it may consider the lesser offense if it either “find[s] the defendant not guilty” or “cannot agree on whether to find the defendant guilty or not guilty” of the greater offenses.

2023A. Lesser-included instruction for provocation manslaughter ¶28 The trial court instructed the jury on manslaughter as a lesser- included offense of murder as provided in State v. LeBlanc, 186 Ariz. 437, 438 (1996), directing the jury that it may consider the lesser offense if it either “find[s] the defendant not guilty” or “cannot agree on whether to find the defendant guilty or not guilty” of the greater offenses.

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

2025See State v. Salazar, 173 Ariz. 399, 408 (1992) (“When the record is such that [a] defendant is either guilty of the crime charged or not guilty, the trial court should refuse a lesser included instruction.” (citation omitted)). ¶34 To convict a defendant of harassment under A.R.S. 13- 2921(A), the jury must find, inter alia, that the defendant “knowingly and 2 repeatedly” committed an act or acts that harasses another person.

2022“When the record is such that defendant is either guilty of the crime charged or not guilty, the trial court should refuse a lesser included instruction.” State v. Salazar, 173 Ariz. 399, 408 (1992). ¶16 Here, the record discloses overwhelming evidence of Stewart’s guilt on the charged offenses, including a video recording of his detailed confession.

2012We review the statutes at issue to determine if the lesser crime is “composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251 , 660 P.2d 849, 852 (1983); see also State v. Dugan, 125 Ariz. 194, 195 , 608 P.2d 771, 772 (1980) (explaining that a lesser-included instruction is proper only when the greater crime requires the jury to find a disputed factual element which is not required for conviction of the lesser crime) (citation omitted). ¶ 5

2012We review the statutes at issue to determine if the lesser crime is “composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251 , 660 P.2d 849, 852 (1983); see also State v. Dugan, 125 Ariz. 194, 195 , 608 P.2d 771, 772 (1980) (explaining that a lesser-included instruction is proper only when the greater crime requires the jury to find a disputed factual element which is not required for conviction of the lesser crime) (citation omitted). ¶ 5

2023The lesser-included instruction under LeBlanc invites the jury to consider the lesser offense if it finds the defendant not guilty or cannot agree, but the proper instruction for provocation manslaughter requires the jury to consider whether the additional circumstance set forth in § 13-1103(A)(2) has been proven if it “find[s] the 11 STATE v. FOURNIER Opinion of the Court elements of second-degree murder proven beyond a reasonable doubt.” Lua, 237 Ariz. 301, ¶ 20 (quoting Rev.

2023Fournier bears the burden to prove the error was not only fundamental but prejudicial, such “that without the error, a reasonable jury could have plausibly and intelligently returned a different verdict.” State v. Fierro, 254 Ariz. 35 , ¶ 21 (2022) (quoting Escalante, 245 Ariz. 135 , ¶ 31). ¶30 In State v. Lua, 237 Ariz. 301, ¶ 19 (2015), our supreme court held that the lesser-included instruction provided in LeBlanc does not apply to provocation manslaughter.

2022Sufficient evidence supports a lesser-included instruction if “the jury could rationally fail to find the distinguishing element of the greater offense.” State v. Detrich, 178 Ariz. 380, 383 (1994). ¶17 Preston concedes that child molestation is a lesser-included offense of sexual conduct with a minor.

1997In determining if evidence is sufficient to require a lesser-included instruction, "the test is `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 (1994) (citation omitted).

2019The trial court denied the request for a Willits instruction, but granted defendant’s requests for both a mere presence instruction and a lesser-included instruction as to trespassing. ¶6 “A Willits instruction is appropriate when the state destroys or loses evidence potentially helpful to the defendant.” State v. Lopez, 163 Ariz. 108, 113 (1990).

2000See State v. Lopez, 163 Ariz. 108, 112 , 786 P.2d 959, 963 (1990); State v. Celaya, 135 Ariz. 248, 255 , 660 P.2d 849, 856 (1983), citing State v. Arias, 131 Ariz. 441 , 641 P.2d 1285 (1982).

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

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

2002State v. Bolton, 182 Ariz. 290, 309 , 896 P.2d 830, 849 (1995). ¶ 9 Although Morgan complains that the trial court refused to give a lesser-included instruction on sexual abuse, as the state points out in its answering brief, no sexual abuse charge was submitted to the jury.

2002State v. Bolton, 182 Ariz. 290, 309 , 896 P.2d 830, 849 (1995). ¶ 9 Although Morgan complains that the trial court refused to give a lesser-included instruction on sexual abuse, as the state points out in its answering brief, no sexual abuse charge was submitted to the jury.

2003On the other hand, the person cannot commit the lesser offense of shoplifting without satisfying all but one element of the greater offense of facilitated shoplifting, namely, that the person entered the store with something he or she intended to facilitate the shoplifting. ¶ 23 Accordingly, in this case, Brown was entitled to his requested lesser-included offense instruction because shoplifting "is in fact a lesser-included offense to [facilitated shoplifting] and ... the evidence support[ed] the giving of the lesser-included instruction." Miranda, 200 Ariz. 67, ¶ 2 , 22 P.3d 506, ¶ 2 .

2003On the other hand, the person cannot commit the lesser offense of shoplifting without satisfying all but one element of the greater offense of facilitated shoplifting, namely, that the person entered the store with something he or she intended to facilitate the shoplifting. ¶ 23 Accordingly, in this case, Brown was entitled to his requested lesser-included offense instruction because shoplifting "is in fact a lesser-included offense to [facilitated shoplifting] and ... the evidence support[ed] the giving of the lesser-included instruction." Miranda, 200 Ariz. 67, ¶ 2 , 22 P.3d 506, ¶ 2 .

2023See, e.g., Wall, 212 Ariz. 1 ; Valenzuela, 194 Ariz. 404 .

2020Id. at 407-08, ¶¶ 16-17 . ¶14 The difference between Valenzuela and this case is dispositive—Starnes expressly asked not to have jury instructions on lesser-included offenses.

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

2012See 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)).

2012See 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)).

2025See Cohen, 191 Ariz. at 474, ¶ 13 . 6 STATE v RODRIGUEZ Decision of the Court And even assuming she did not waive this argument, Rodriguez has shown no error. ¶27 When she requested the lesser-included instruction at trial, Rodriguez failed to specify which degree of criminal trespass she was talking about—she argued only that the mailboxes were residential, suggesting she was requesting only a first-degree criminal trespass instruction.

2024See State v. Marshall, 197 Ariz. 496 , 505 ¶¶ 33–34 (App. 2000) (holding that the defendant’s lesser-included sexual conduct offense argument was rendered moot by the jury’s explicit finding that the victim was less than fifteen).

2024See State v. Logan, 200 Ariz. 564 , 565 ¶ 8 (2001) (“[W]hen a party requests an erroneous instruction, any resulting error is invited and the party waives his right to challenge the instruction on appeal.”); see also Krone, 182 Ariz. at 323 (“A defendant should not have a lesser included instruction forced upon him.”).

2022See 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).

2021See State v. Magana, 178 Ariz. 416, 418 (App. 1994) (determining that language in the indictment implicitly supported a lesser- included instruction).

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

2017Id. at 562, 564 , 851 P.2d at 861, 863 .

2017See Plew, 150 Ariz. at 78 , 722 P.2d at 246 .

2017See Plew, 150 Ariz. at 78 , 722 P.2d at 246 .

2015See id.

2014Conversely, if a defendant in a non-capital case does not request a lesser- included instruction at trial, “no error may be urged on appeal for the failure of the trial court to give an instruction on a lesser included offense.” State v. Vanderlinden, 111 Ariz. 378, 380 , 530 P.2d 1107, 1109 (1975). ¶14 The record reflects some uncertainty as to whether Jarrett wanted the court to give the provocation manslaughter instruction.

2014Conversely, if a defendant in a non-capital case does not request a lesser- included instruction at trial, “no error may be urged on appeal for the failure of the trial court to give an instruction on a lesser included offense.” State v. Vanderlinden, 111 Ariz. 378, 380 , 530 P.2d 1107, 1109 (1975). ¶14 The record reflects some uncertainty as to whether Jarrett wanted the court to give the provocation manslaughter instruction.