Opinion
1 CA-CR 23-0212
12-19-2024
STATE OF ARIZONA, Appellee, v. MATTHEW COOPER, Appellant.
Arizona Attorney General's Office, Phoenix By Eric C. Knobloch Counsel for Appellee Rosenstein Law Group, P.L.L.C., Scottsdale By Craig Jacob Rosenstein, Vicki A. R. Lopez Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2022-110553-001 The Honorable Chuck Whitehead, Judge
Arizona Attorney General's Office, Phoenix
By Eric C. Knobloch
Counsel for Appellee
Rosenstein Law Group, P.L.L.C., Scottsdale
By Craig Jacob Rosenstein, Vicki A. R. Lopez
Counsel for Appellant
Judge Michael J. Brown delivered the decision of the Court, in which Judge Jennifer B. Campbell joined and Presiding Judge Samuel A. Thumma specially concurred in part and dissented in part.
MEMORANDUM DECISION
BROWN, Judge:
¶1 Matthew Cooper appeals his conviction and sentence for aggravated assault. Because fundamental, prejudicial error occurred when the jury was not properly instructed on lesser-included offenses, we vacate the conviction and sentence, and we remand for a new trial.
BACKGROUND
¶2 Around noon on March 11, 2022, Max, who worked for a pest control company, went to the house where Cooper was living (which was owned by his mother) to conduct a termite inspection. Max had called Cooper's mother two days before to confirm the inspection but received no response. Upon arriving at the house, Max rang the doorbell and knocked on the security door, but no one answered. After calling Cooper's mother again to alert her he was at her home, Max proceeded with his inspection by entering the backyard through an unlocked gate.
To protect the victim's identity, we have used a pseudonym.
¶3 Cooper was in the house when Max arrived. After seeing Max through security cameras, Cooper became suspicious because another employee from the same pest control company had performed a scorpion inspection a few days earlier and Cooper was unaware of a planned termite inspection. Cooper went outside into the backyard and began asking Max why he was there. Max's attempt to explain his presence did not satisfy Cooper, and the two briefly argued. At one point Cooper told Max "we have guns in the house, you almost got [] shot." The argument escalated, as Cooper became more agitated and belligerent. Cooper yelled at Max to "Get [] off my property," and Max then returned to his truck parked on the street near the front of the house.
¶4 As Max started the truck, Cooper opened the garage and walked out while carrying a "tactical" shotgun. Cooper held the stock in his right hand and rested the barrel across his shoulder. Cooper repeatedly told Max to "go on, go on," directing him to leave. From there, the security video footage ended, and the accounts of Cooper and Max diverge. Cooper asserted that Max drove away and that Cooper never made any threatening gestures or statements toward Max. But Max claimed that before driving away, Cooper pointed the weapon at him and said, "You have 30 seconds to leave before I blow your head off."
¶5 After leaving the property, Max called 911 to report the incident. Two weeks later, Cooper was arrested after police executed a search warrant on his mother's home. The State charged Cooper with one count of aggravated assault under A.R.S. § 13-1204(A)(2), based on his use of a deadly weapon or dangerous instrument to intentionally place Max in reasonable apprehension of imminent physical injury, a Class 3 dangerous felony offense. At trial, the State presented testimony from Max, several police officers, a neighbor that saw a portion of the encounter, and Cooper's mother. Cooper testified in his own defense.
¶6 After the State presented its case, defense counsel requested instructions on two lesser-included offenses, assault and disorderly conduct, but did not specify which of the six subsections of disorderly conduct should be given to the jury. See A.R.S. § 13-2904(A). Instead, defense counsel offered the court a set of jury instructions from a previous trial to use as a "framework," because the superior court acknowledged it had not presided over a trial involving lesser-included offenses for some time and was unsure how to format the instructions. Defense counsel said he did not think that "disorderly conduct" was in the instructions he provided, but "maybe it will be a guide for [the court]." The court's final written jury instructions on disorderly conduct read as follows:
The crime of Assault includes the lesser offense of Disorderly Conduct. [] You may consider the lesser offense of Disorderly Conduct if either
1. You find the defendant not guilty of Assault, or
2. After full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of Assault.
Disorderly Conduct requires proof that the defendant knowingly or intentionally disturbed the peace or quiet of another person by engaging in violent or seriously disruptive behavior.
The verdict forms stated that the jury could only consider disorderly conduct as a lesser-included offense if it found Cooper not guilty of simple assault, rather than aggravated assault. Neither party raised any concerns that the instructions (as well as the verdict forms) should have stated "aggravated assault" instead of "assault"; nor did either party object to the description of the elements of disorderly conduct. During deliberations, the jury submitted the following question: "Clarification of aggravated assault. Does [] use of a deadly weapon have to be pointed or just [] brandished?" Counsel disagreed on whether the law requires pointing of the weapon, and the court directed the jury to review the instructions previously provided.
¶7 The jury then found that Cooper was guilty of aggravated assault and, later, that the State proved three aggravating circumstances. The court then sentenced Cooper to a slightly mitigated six-year prison term. Cooper timely appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, -4033(A)(1).
DISCUSSION
I. Sufficiency of Evidence
¶8 Cooper argues the State did not present sufficient evidence to sustain his conviction for aggravated assault. In considering the sufficiency of the evidence, we look to whether the record contains "substantial evidence" to support a conviction. State v. West, 226 Ariz. 559, 562, ¶ 14 (2011). Substantial evidence is what "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419 (1980). We review the sufficiency of the evidence de novo, viewing the evidence in a light most favorable to sustaining the verdict. State v. Bible, 175 Ariz. 549, 595 (1993).
¶9 According to Cooper, the conviction cannot stand because he testified that he did not point the gun at Max, and the neighbor never saw Cooper point the gun at or threaten Max. Nor was there any video evidence depicting such conduct. But Max testified that Cooper pointed the gun at him and threatened to "blow [his] head off" after the neighbor left and after the video recording ended. The testimony of a single witness is sufficient evidence to support a conviction, even if uncorroborated. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3 (App. 2005). Max's testimony alone was enough evidence to sustain Cooper's conviction of aggravated assault.
II. Jury Instructions
¶10 Cooper argues his conviction must be vacated claiming two legal errors stemming from the lesser-included offense disorderly conduct jury instruction. He contends the instruction referenced the incorrect subsection for disorderly conduct under A.R.S. § 13-2904, and that the instruction incorrectly stated that disorderly conduct is a lesser-included offense of assault rather than aggravated assault.
¶11 Cooper was charged with aggravated assault under A.R.S. § 13-1204(A)(2), which required the State to prove that Cooper intentionally placed the victim in "reasonable apprehension of imminent physical injury" and did so "us[ing] a deadly weapon or dangerous instrument," A.R.S. § 13-1204(A)(2). Assault, sometimes called "simple" assault, is a lesser-included offense of aggravated assault, including for a § 13-1204(A)(2) aggravated assault charge. See State v. Erivez, 236 Ariz. 472, 475-76, ¶ 15 (App. 2015) (citing cases). Disorderly conduct by recklessly handling, displaying or discharging a deadly weapon or dangerous instrument, A.R.S. § 13-2904(A)(6), is also a lesser-included offense for a § 13-1204(A)(2) aggravated assault charge. See State v. Angle, 149 Ariz. 478, 479 (1986); see also State v. Miranda, 200 Ariz. 67, 69, ¶ 5 (2001) (reaffirming Angle).
¶12 The superior court's lesser-included instruction on disorderly conduct, however, tracked A.R.S. § 13-2904(A)(1), which states that "[a] person commits disorderly conduct if, with intent to disturb the peace or quiet of a[nother] . . . person, or with knowledge of doing so . . . [e]ngages in fighting, violent or seriously disruptive behavior." A.R.S. § 13-2904(A)(1) ("(A)(1) disorderly conduct"). Cooper argues the court should have instructed the jury under subsection (A)(6), which states that a person commits disorderly conduct if the person intentionally or knowingly disturbs the peace of another and "[r]ecklessly handles, displays or discharges a deadly weapon or dangerous instrument." A.R.S. § 13-2904(A)(1) ("(A)(6) disorderly conduct").
¶13 Because Cooper did not raise these arguments at trial, we review only for fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). To establish fundamental error, Cooper must first show an error occurred at trial. Id. at 142, ¶ 21. He must then show the error was "fundamental," meaning the error went to the foundation of the case, took away an essential right, or was so egregious that he could not have received a fair trial. Id. Except for errors so egregious that a fair trial is impossible, the defendant must also establish that the fundamental error caused him prejudice. Id. The State does not dispute that the errors were fundamental. Rather, the State contends that Cooper has failed to meet his burden of showing prejudice.
A. Nature of the Errors
¶14 To provide proper context for analyzing prejudice we explain why the court's instructions were erroneous. See State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (recognizing that prejudice is a fact intensive inquiry, turning on both the specific kind of error that occurred along with the facts of the case). "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." Ariz. R. Crim. P. 21.4(a)(1). An offense is necessarily included in the charged offense if it is both a lesser-included offense (such that the greater offense cannot be committed without also committing the lesser), and if the evidence presented at trial supports the instruction. State v. Wall, 212 Ariz. 1, 3, ¶ 14 (2006). "In other words, if 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, the defendant is entitled to have the judge instruct the jury on the lesser-included offense." Id. (emphasis added).
¶15 The trial record does not confirm what disorderly conduct instruction Cooper requested; at trial the court briefly explained that it had received Cooper's request for such an instruction. A person can commit disorderly conduct under A.R.S. § 13-2904(A) six different ways. But only (A)(6) disorderly conduct is a proper lesser-included offense of aggravated assault under § 13-1204(A)(2). See A.R.S. § 13-2904(A)(1)-(5). Thus, any request for an instruction on disorderly conduct could only, legitimately, have been a request for an instruction for (A)(6) disorderly conduct. But viewing Cooper's lesser-included jury instructions request as deficient, we still review for fundamental error. See State v. Tschilar, 200 Ariz. 427, 437, ¶ 39 (App. 2001) (explaining that when a defendant does not request a lesser-included instruction, he waives the issue, and we review only for fundamental error).
¶16 It was also error to instruct the jury on (A)(1) disorderly conduct. The aggravated assault charge here required the State to prove two elements: (1) that Cooper intentionally placed a person in reasonable apprehension of imminent physical injury by (2) using a deadly weapon/dangerous instrument. A.R.S. §§ 13-1203(A)(2), -1204(A)(2). Disorderly conduct under (A)(1) requires proof that Cooper: (1) intentionally or knowingly disturbed another person's peace or quiet by (2) engaging in fighting, violent, or seriously disruptive behavior. A.R.S. § 13-2904(A)(1). It is possible to commit aggravated assault as Cooper was charged here, without committing (A)(1) disorderly conduct. Thus, this subsection of disorderly conduct is not a lesser-included offense of aggravated assault as charged. Moreover, because disorderly conduct is not a lesser-included offense of simple assault, the court erred by instructing the jury that it could only consider disorderly conduct if it determined that Cooper was not guilty of simple assault. See Erivez, 236 Ariz. at 476, ¶¶ 17-18. The verdict form compounded the erroneous framing between the charged offense and lesser-included offenses by telling jurors they could only complete the portion of the verdict form on disorderly conduct if they could not agree or find the defendant not guilty of assault.
¶17 The superior court's jury instructions also incorrectly framed the relationship between aggravated assault and the lesser-included offenses. Under the section titled "Lesser-Included Offense," only "assault" is a lesser-included offense of "aggravated assault." Under the instructions for "Disorderly Conduct," the instructions incorrectly state that "[t]he crime of Assault includes the lesser offense of Disorderly Conduct," and that the jurors could only consider this offense if they found the defendant not guilty of assault or could not agree the defendant was guilty or not guilty of assault. Though both assault and disorderly conduct may be lesser-included offenses to aggravated assault, they are not lesser-included offenses as to each other. See Erivez, 236 Ariz. at 476, ¶¶ 16-17. These instructional errors were fundamental because they went to the foundation of defendant's case by implicating a critical factual dispute. See infra ¶ 21; Escalante, 245 Ariz. at 141, ¶ 18 ("An error generally goes to the 'foundation of a case' if it relieves the prosecution of its burden to prove a crime's elements, directly impacts a key factual dispute, or deprives the defendant of constitutionally guaranteed procedures.").
B. Prejudice
¶18 Cooper bears the burden of demonstrating that the erroneous jury instructions prejudiced him. Escalante, 245 Ariz. at 144, ¶ 29. To meet that burden, Cooper must show a reasonable jury could have rendered a different verdict had they been properly instructed. Id. Even so, this "could have" standard is not easily satisfied; it is an objective inquiry that cannot rest solely on "imaginative guesswork." Id. at 144, ¶ 31. We consider the entire record to determine whether a defendant has shown prejudice, including the parties' arguments, theories of the case, and the evidence presented at trial. Id.
¶19 In the context of erroneous jury instructions, one of the factors we consider in evaluating prejudice is the extent to which evidence and the defendant's theory of the case implicate the incorrect instruction at issue. In State v. Fierro, our supreme court found there was no prejudice arising from an erroneous instruction on attempted second degree murder, of which the defendant was ultimately convicted. State v. Fierro, 254 Ariz. 35, 39, ¶¶ 6-9 (2022). The instruction at issue implied that jurors could find the defendant guilty of the offense if they found the defendant had intended to cause serious physical injury, rather than requiring an intent to kill. Id. at ¶¶ 8, 17-18. But the supreme court ultimately determined the error did not cause prejudice because the defendant had not claimed that he intended to cause injury short of death; rather, he had argued self-defense. Id. at 42-43, ¶¶ 25-27. Thus, if the jurors had accepted the defendant's telling of events, they would have acquitted him regardless of whether the instruction was correct. Id. at 42, ¶ 25.
¶20 Similarly, in Dickinson, 233 Ariz. at 533, ¶ 22, this court concluded that an erroneous instruction did not cause prejudice. Dickinson dealt with a defective attempted second-degree murder instruction similar to what occurred in Fierro. Dickinson, 233 Ariz. at 530, ¶ 11. The defendant in Dickinson asserted a mistaken identity defense at trial, and his theory of the case was "that he had nothing to do with the incident." Id. at 531, ¶ 15. As with Fierro, the State's theory in Dickinson also centered on the defendant's intent to kill. Id. at ¶ 14. When the evidence in a case, along with the theories and arguments the parties presented, do not implicate the erroneous instruction at issue there is little reason to believe correct instructions would result in a different verdict. State v. Ruiz, 236 Ariz. 317, 325, ¶ 28 (App. 2014).
¶21 Conversely, when the evidence and arguments directly implicate erroneous instructions, this court has determined such errors were prejudicial. In State v. James, 231 Ariz. 490 (App. 2013), the trial court erroneously instructed a jury that assault under A.R.S. § 13-1203(A)(2) could be committed knowingly or recklessly, despite the statute requiring that the defendant act intentionally. James, 231 Ariz. at 492-93, ¶ 8. The defense at trial centered on the defendant's mental state; he testified that he had not intended "to place anyone in fear or apprehension." Id. at 494, ¶ 16. This court concluded that his defense "squarely implicated the applicable fundamental error," and that the conflicting evidence about the defendant's mental state along with the theories of the case presented meant that a reasonable jury could have reached a different result. Id. at 494, ¶¶ 16, 18. And in State v. Juarez-Orci, 236 Ariz. 520, 526-27, ¶¶ 22-23 (App. 2015), a case dealing with the same instructional issue presented in Dickinson and Fierro, this court held that the defendant was prejudiced, explaining that in closing arguments he asserted he "had not acted with premeditation or with intent to kill" and thus the erroneous instruction "related directly to [his] defense."
¶22 Prejudice may occur even when a defendant's alternative argument implicates incorrect jury instructions. In State v. Felix, 237 Ariz. 280, 288, ¶ 25 (App. 2015), our court found prejudicial error in instructions for attempted second degree murder, which again reflected the same error in Fierro. In Felix, a shooter fired numerous rounds from an AK-47 into an occupied home; the defendant was charged with attempted first degree murder, and a jury convicted him of several counts of attempted second degree murder. Felix, 237 Ariz. at 283-84, ¶¶ 7, 9. The defendant's primary argument was that he was not at the scene and had an alibi, but in closing made an alternate argument that whoever perpetrated the shooting had not intended to kill the occupants of the house. Id. at 286-87, ¶ 21. This court noted that the relevant test for prejudice was whether a properly instructed, reasonable jury could have found the defendant not guilty of the second-degree murder, and because the evidence presented at trial could have supported several different theories as to which offense the defendant might have committed, the court determined that the defendant had proven prejudice. Id. at 287, ¶¶ 22, 24.
¶23 Felix, James, and Juarez-Orci are more analogous to this case. The core factual dispute here was whether Cooper had aimed his gun at Max and threatened him. As the State explained in closing, "[t]he question is did [Cooper] intentionally place [the victim] in reasonable apprehension of imminent physical injury?" The State argued that "[the victim] will tell you, by his own actions, that he was placed in reasonable apprehension of imminent physical injury. . . [w]hen a gun is being pointed at you, you immediately think, oh, crap, something is going to happen." (Emphasis added.) But Cooper's argument centered around his own version of events, in which he maintained that all he had done was hold the gun over his shoulder while telling the victim to leave. Though Cooper never affirmatively argued he should have been convicted of disorderly conduct instead of aggravated assault, his version of events would have supported a disorderly conduct conviction under A.R.S. § 13-2904(A)(6). Supra ¶ 15. Thus, Cooper's defense directly implicates the erroneous instruction here.
¶24 Juror questions are relevant to an examination of prejudice because the jury in this case and a hypothetical "reasonable jury" share the same presumptive traits. Escalante, 245 Ariz. at 144, ¶ 32. Here, the jury sought clarification of aggravated assault when it asked whether use of a deadly weapon has "to be pointed or just [] brandished." The use of the term "brandish" is significant because it implicates the omitted instruction under § 13-2904(A)(6). To "brandish" can be defined as "shak[ing] or waiv[ing] (something, such as a weapon) menacingly" or "exhibit[ing] in an ostentatious or aggressive manner." Brandish, Merriam-Webster, https://www.merriam-webster.com/dictionary/brandish. This definition tracks with the language of (A)(6) disorderly conduct, which requires proof of "recklessly display[ing], handl[ing], or discharg[ing] a deadly weapon." The jury's question also reveals some uncertainty on whether Cooper pointed a gun at Max, and whether Cooper would still have been found guilty of aggravated assault if he had not done so. And if the jury doubted which charge appropriately fit the evidence presented, the instructions incorrectly precluded them from considering disorderly conduct unless the jury found Cooper not guilty of assault as well. Given that his defense and the evidence he presented implicates the incorrect instruction, and the instructions incorrectly prevented the jury from considering the lesser-included offense, Cooper has met his burden of showing that the instruction prejudiced him. See Felix, 237 Ariz. at 287-88, ¶ 24 (finding prejudice because the evidence could have established many theories about the defendant's conduct, implicating the erroneous instructions).
¶25 Despite the jury's question indicating hesitation about the charged offense, and the fact that its question strikes at the key factual disagreement in the case, the State has not addressed it. Instead, the State argues Cooper cannot show prejudice from the superior court's failure to instruct the jury as to disorderly conduct under § 13-2904(A)(6) because the jury ultimately convicted Cooper of aggravated assault, which the State argues "rendered any error in the instructions on lesser offenses as moot." The State contends that the jurors followed the instructions provided, see State v. Newell, 212 Ariz. 389, 403, ¶ 69 (2006), which required them to consider lesser-included offenses if they found Cooper not guilty of aggravated assault, or if they could not agree on the charged offense. According to the State, because the jury convicted Cooper of the charged offense, it means any errors in the instructions were rendered moot, negating any potential prejudice.
¶26 The law does not support the State's position. Our supreme court has explained that "[t]he rule requiring instruction on lesser-included offenses is designed to prevent a jury from convicting a defendant of a crime, even if all of its elements have not been proved, simply because the jury believes the defendant committed some crime." Wall, 212 Ariz. at 4, ¶ 16. Our supreme court cited Beck v. Alabama, in which the United States Supreme Court explained that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Beck v. Alabama, 447 U.S. 625, 634 (1980) (citation omitted). Allowing the jury to convict a defendant on a lesser-included offense affords the defendant "the full benefit of the reasonable-doubt standard," id., and thus protects a defendant's constitutional rights, State v. Murray, 250 Ariz. 543, 550, ¶ 22 (2021) (discussing, in general, the beyond a reasonable doubt standard, noting "[a] conviction by a lower standard of proof is constitutionally infirm.") (citation omitted). Thus, we reject the State's argument that Cooper's conviction of aggravated assault necessarily demonstrates a lack of prejudice.
¶27 The State contends that if the jurors doubted Cooper's guilt, they still had the choice to convict him of disorderly conduct under A.R.S. § 13-2904(A)(1). But any choice the jurors had to convict Cooper of disorderly conduct was illusory, because disorderly conduct under (A)(1) is not a lesser-included offense of aggravated assault. Supra ¶ 15. When the State charges an offense, the defendant is also charged with necessarily included offenses. Ariz. R. Crim. P. 13.1(e). However, given how it was instructed in this case, disorderly conduct under § 13-2904(A)(1) was not necessarily included in the greater offense, so if the jury had convicted Cooper of disorderly conduct under that subsection, he would have been convicted of an uncharged offense. Given the lack of notice, the conviction would have to be vacated. See State v. Butrick, 113 Ariz. 563, 567 (1976).
¶28 Asserting that Cooper was not prejudiced, the State relies on State v. Valenzuela, 194 Ariz. 404 (1999). There, a defendant was convicted of second-degree murder, and our supreme court found fundamental error in the trial court's failure to provide instructions on reckless manslaughter. Id. at 407-08, ¶ 16. The court explained that the defendant's intent was the "cornerstone of his defense," and the key "battleground" of the case. Id. The difference between this case and Valenzuela, according to the State, is that the disorderly conduct instruction was not the "battleground" issue, and thus reversal is unwarranted. But the State fails to recognize that whether Cooper pointed the gun at Max, and whether his actions rose to a level where he placed the victim in reasonable apprehension of imminent harm were the central disputes the jury had to resolve.
¶29 The dissent likewise relies on Valenzuela, pointing to the fact that the line between second degree murder and reckless manslaughter (the offenses at issue in Valenzuela) is much narrower than the line between (A)(2) aggravated assault and (A)(6) disorderly conduct. We do not find that distinction dispositive. Our supreme court found fundamental error in Valenzuela because the court's omitted instruction implicated the issue of the defendant's intent, which had been the "cornerstone of his defense" and thus a key "'battleground' of the case." Id. The issue of whether Cooper pointed his gun at Max or not was no less the cornerstone of his defense. The dissent correctly notes that Valenzuela was decided before our supreme court's decision in Escalante clarified the standard for showing fundamental, prejudicial error. Even so, Valenzuela determined a new trial was justified. Likewise, for the reasons explained above, Cooper is entitled to a new trial with a properly instructed jury. Supra ¶¶ 18-24.
¶30 The dissent, as well as the State, also note that Valenzuela is the only appellate decision finding fundamental, reversible error for the failure to provide a lesser-included offense instruction. But here, the superior court did not refuse to provide such an instruction; instead, the court incorrectly instructed the jury on disorderly conduct. Prejudice can arise in such a case when a defendant is deprived of a right essential to his defense-a properly instructed jury-and Cooper has demonstrated that his case qualifies as a rare case justifying reversal. Fierro, 254 Ariz. at 42, ¶ 24 (recognizing "the defendant's heavy burden to prove prejudice" and thus reversal of a criminal conviction where no objection was made at trial would be a "rare case") (quotation omitted).
¶31 Finally, the State contends that even if the jury had believed Cooper's version of events, it could not reasonably convict Cooper of disorderly conduct under § 13-2904(A)(6). But a properly instructed jury could have reasonably believed Cooper's testimony, in which he claimed that he exited his home with a large gun carried over his shoulder and did not point it at the victim. Thus, a reasonable jury could have determined that Cooper had not placed the victim in reasonable apprehension of imminent physical injury, but that Cooper had disturbed the victim's peace by recklessly handling or displaying his gun, in violation of § 13-2904(A)(6). See State v. Angle, 149 Ariz. 499, 509 (App. 1985) (recognizing that the evidence would have supported conviction for aggravated assault, but it was not "beyond the range of possibility that the irrational and frustrated defendant . . . recklessly brandished weapons knowing that he was disturbing the peace of others without intending to place them in apprehension of immediate bodily injury") (Kleinschmidt, J., dissenting). see also State v. Lubic, No. 1 CA-CR 20-0296, 2021 WL 633307 at *4, ¶ 23 (Ariz. App. Feb. 18, 2021) (mem. decision) (finding evidence sufficient for disorderly conduct conviction under (A)(6) when a defendant approached a victim's house and made demands with a rifle slung across his chest); State v. Moallim, No. 2 CA-CR 2017-0181, 2018 WL 1566520 at *3, ¶ 12 (Ariz. App. Mar. 30, 2018) (mem. decision) (finding evidence sufficient for disorderly conduct conviction under (A)(6) even though the defendant did not point the gun at the victim).
CONCLUSION
¶32 Based on our review of the entire record, and given the unique circumstances of this case, we conclude that Cooper has met his burden of showing that a reasonable jury, if properly instructed, could have reached a different result. Accordingly, we vacate Cooper's conviction and sentence, and remand for a new trial.
THUMMA, J., specially concurred in part and dissented in part:
¶33 I agree with a great deal of the Majority's analysis. I agree there was sufficient evidence to support the aggravated assault conviction. I also agree the lesser included offense (LIO) jury instructions were in error in two respects: (1) the instructions directed, albeit in a skeletal way, that assault is an LIO of aggravated assault and that disorderly conduct, in turn, is an LIO of assault, when in fact assault and disorderly conduct in this case are each LIOs of aggravated assault (but not each other) and (2) the disorderly conduct LIO instruction should have been for (A)(6) disorderly conduct, not (A)(1) disorderly conduct as was given.
¶34 The responsibility for these errors rests in some part with Cooper, with the State and with the superior court. Each could have done better in ensuring the LIO instructions were correct. There is, however, no argument that Cooper invited the errors. See State v. Robertson, 249 Ariz. 256, 260 ¶ 15 (2020) ("The invited error doctrine prevents a party from injecting error into the record and then profiting from it on appeal.") (citation omitted). Nor did Cooper sufficiently raise the errors at trial so that the State would be required to show harmless error. See State v. Strong, __ Ariz. __,__ ¶ 45, 555 P.3d 537, 553 ¶ 45 (App. 2024) (noting "objected-to trial error" requires the State to show "beyond a reasonable doubt that the error did not contribute to or affect the verdict or sentence.") (citing cases). Instead, we are asked to apply fundamental error review to determine the consequences of these instructional errors. See Escalante, 245 Ariz. at 140 ¶ 12.
¶35 To obtain reversal under fundamental error review, Cooper must show: (1) trial error; (2) that was "fundamental," meaning the error went to the foundation of the case, took away an essential right or was so egregious that he could not have received a fair trial; (3) that caused resulting prejudice. Majority at ¶ 13 (citing Escalante, 245 Ariz. at 142 ¶ 21). Agreeing that the LIO instructions were error, my struggle turns to whether Cooper has shown fundamental error resulting in prejudice.
¶36 I start by comparing what would have happened if no LIOs were requested or given in this case. The (A)(2) aggravated assault jury instructions given were correct and properly track the statutory language of the charged offense. See A.R.S. § 13-1204(A)(2). I agree with the Majority that there was substantial trial evidence supporting the jury's verdict finding Cooper was guilty of (A)(2) aggravated assault. So, if no LIOs had been requested or given, the trial evidence and (A)(2) aggravated assault jury instructions yielding a guilty verdict would provide Cooper no basis to allege instructional error.
¶37 That, of course, is not what happened here. But comparing that to what did happen, in my view, Cooper has not shown fundamental error resulting in prejudice for LIO jury instructions that the jury did not apply when it found him guilty of the greater offense of aggravated assault. As the Majority notes, during deliberations, the jury asked about a definition used in aggravated assault. After consultation with the parties and without objection, the court provided a written answer to the jury and, without further request for clarification, the jury found Cooper guilty of aggravated assault. To me, the jury returning a guilty verdict of the greater offense of aggravated assault indicates the jury had no occasion to apply the erroneous LIO jury instructions.
¶38 Cooper argues the errors in the LIO jury instructions "directly impact[] a key factual dispute and ultimately deprived [Cooper] of his constitutional right to a fair trial by jury." But to paraphrase the Escalante standard, as Cooper does in that quote, is different than showing fundamental error resulting in prejudice as Escalante requires for reversal. See 245 Ariz. at 142 ¶ 21. In my view, State v. Angle, 149 Ariz. 478 (1986) and State v. Valenzuela, 194 Ariz. 404 (1999) - cases relied upon by the parties -are instructive, but lead me to conclude that Cooper has not shown fundamental error resulting in prejudice.
¶39 In Angle, the defendant was charged with (A)(2) aggravated assault and requested an (A)(6) disorderly conduct LIO jury instruction. 149 Ariz. 499, 501 (App. 1985). The superior court refused the disorderly conduct LIO instruction, but over defendant's objection, gave an LIO instruction on attempted aggravated assault. Id. Either finding defendant not guilty on aggravated assault or being unable to reach a unanimous verdict on that charge, the jury found Angle guilty of the LIO of attempted aggravated assault. Id. On appeal, over a dissent, the majority concluded that (A)(6) disorderly conduct was "not a lesser included offense of" (A)(2) aggravated assault. Id. at 506; see also id. at 507-09 (Kleinschmidt, J., dissenting). On further review, the Arizona Supreme Court "adopt[ed] the dissenting opinion of Judge Kleinschmidt and vacate[d] the majority opinion," concluding that (A)(6) disorderly conduct is an LIO of (A)(2) aggravated assault and that it was error to fail to give the requested (A)(6) disorderly conduct LIO instruction. 194 Ariz. at 479-80 (3-2 decision). Although unstated, because the defendant in Angle timely raised the issue at trial, a harmless error standard of review would have applied there, requiring the State to show the error was harmless to avoid reversal. See Strong,__ Ariz. at__ ¶ 45, 555 P.3d at 553 ¶ 45 (citing cases). By contrast, in this case, because Cooper did not timely raise the issue at trial, this court looks to see whether Cooper has shown fundamental error resulting in prejudice. See Escalante, 245 Ariz. at 140 ¶ 12. I view Angle as getting us to error, but not addressing whether there was fundamental error resulting in prejudice.
¶40 Valenzuela appears to be the only Arizona appellate court opinion to hold that the failure to provide an LIO jury instruction was fundamental error resulting in prejudice. In Valenzuela, the defendant was charged with first degree murder. The superior court gave second degree murder and heat of passion manslaughter LIO jury instructions and "[a]lthough the trial judge had concluded the evidence supported giving an instruction for reckless manslaughter, the judge inadvertently failed to so instruct the jury." 194 Ariz. at 405 ¶¶ 1, 11. The jury then found defendant guilty of the LIO of second degree murder, the Arizona Supreme Court found the failure to give an LIO instruction on reckless manslaughter "constituted fundamental, reversible error." Id. at 405 ¶ 1.
¶41 In its analysis, Valenzuela focused on the fine distinction between second degree murder (an offense for which the jury found defendant guilty) and reckless manslaughter (which the trial court failed to instruct the jury on in an LIO instruction after concluding the trial evidence supported such an instruction). Stating second degree murder "results when, without premeditation, one 'recklessly engages in conduct which creates a grave risk of death,' under circumstances 'manifesting [an] extreme indifference to human life,' and causes the death of another person," Valenzuela added that reckless manslaughter "involves being aware of a substantial and unjustifiable risk that one's conduct will cause another's death and consciously disregarding that risk." Id. at 406 ¶ 11 (citing authority). After noting the substantial similarity of these two different crimes, Valenzuela added: "[h]ad the jury been given reckless manslaughter as an alternative, it could have accepted appellant's explanation of the events, and have found his actions to be reckless within the meaning of the manslaughter statute," as opposed to reckless within the meaning of the second degree murder statute. Id. at 407 ¶ 13. By contrast, in this case, although (A)(6) disorderly conduct is an LIO of (A)(2) aggravated assault, it is not a slightly different version of the same criminal outcome that was at issue in Valenzuela.
¶42 Valenzuela was also decided in an era before the Arizona Supreme Court sought to clarify "[s]ome confusion about what fundamental error review entails." Escalante, 245 Ariz. at 140 ¶ 12. Valenzuela ultimately concluded "[f]undamental, reversible error resulted when the trial judge inadvertently failed to give the reckless manslaughter instruction." 194 Ariz. at 406 ¶ 16. But even then, just before reaching that conclusion, Valenzuela declared: "we cannot conclude, beyond a reasonable doubt, that the error did not contribute significantly to the verdict, and therefore cannot conclude that the error was harmless." Id. (citing cases). That declaration, at least today, reads like the harmless error standard, which is not applicable here, and places on the State the burden to show that an error on an issue properly raised was harmless (not requiring the defendant, as applicable here, to show fundamental error resulting in prejudice). See Strong, __Ariz. at__ ¶ 45, 555 P.3d at 553 ¶ 45.
¶43 In my view of the record, Cooper has not shown the errors in the LIO jury instructions constitute fundamental error resulting in prejudice. No doubt, LIO jury instructions are important, should be given when requested if supported by the law and trial evidence and, when given, should be correct. The best way for LIOs to work is for LIO jury instructions to be done correctly in the first instance. And Valenzuela shows that, in the right case on the right record, failure to do so can constitute fundamental error resulting in prejudice. In my view, however, this is not that case.
¶44 For these reasons, I concur in part with the Majority and respectfully dissent in part.