Opinion
No. 2 CA-CR 2019-0295
05-04-2021
The STATE of Arizona, Appellee, v. Jarrad Trevor BARNES, Appellant.
Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee James Fullin, Pima County Legal Defender, By Robb P. Holmes, Assistant Legal Defender, Tucson, Counsel for Appellant
Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee
James Fullin, Pima County Legal Defender, By Robb P. Holmes, Assistant Legal Defender, Tucson, Counsel for Appellant
Presiding Judge Eppich authored the opinion of the Court, in which Chief Judge Vásquez concurred and Judge Brearcliffe dissented.
EPPICH, Presiding Judge:
¶1 After a jury trial, Jarrad Trevor Barnes was convicted of negligent homicide, endangerment, criminal damage, driving with an illegal drug or its metabolite, and possession of marijuana. On appeal, he solely challenges his endangerment conviction and sentence. He argues the court erred in its endangerment jury instruction which resulted in a duplicitous charge that created the risk of a nonunanimous jury verdict and erroneous felony designation. For the following reasons, we vacate Barnes’ conviction and sentence on the endangerment count only and remand for retrial on that count.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all inferences against Barnes. State v. Felix , 237 Ariz. 280, ¶ 2, 349 P.3d 1117 (App. 2015). On a dry, sunny Saturday morning in May 2016, P.L. was driving northbound in the left-hand lane and noticed a car coming up quickly behind him. Barnes was driving the car, an Impala sedan, in an "erratic" manner—"a pinballing effect from side to side of the road." P.L. estimated Barnes was going anywhere from one and a quarter to two times P.L.’s speed of forty-five to fifty miles per hour.
¶3 Eventually, Barnes made a "very wide" and "fast" left-hand turn and began driving westbound. He "bounced from the right to the left and then back to the right ... corrected back towards the left" and ended up in a left-hand turn bay leading onto a small residential road. Barnes turned at just under sixty-five miles per hour, hitting and jumping the median, and travelling into oncoming traffic. He collided head-on with a Prius in the left-hand lane and the force of the collision moved the cars into the right-hand lane. E.F.—the driver of a pickup truck in the right-hand lane—did not have time to react and struck both cars. The driver of the Prius sustained fatal injuries and E.F. sustained minor injuries.
¶4 A subsequent search of Barnes’ car revealed a baggie of marijuana and a marijuana pipe. Barnes’ blood test revealed the presence of THC and clonazepam. Barnes admitted to using marijuana and taking a prescribed clonazepam the night before the accident. He testified he did not feel impaired the morning of the accident. He described that he lost control of his car and "hit something, which [he] assume[d] was the curb, and the car went left." The next thing he remembered was sitting on the curb after the accident. He had no recollection of the erratic driving behaviors P.L. testified to.
¶5 Barnes was indicted on charges of manslaughter, criminal damage, endangerment, driving under the influence (DUI), driving with an illegal drug or its metabolite, possession of marijuana, and possession of drug paraphernalia. The jury acquitted Barnes of manslaughter but found him guilty of the lesser-included offense of negligent homicide. The jury also acquitted him of the DUI charge, but found him guilty of all other charges. The jury found that the endangerment was of a dangerous nature, and a subsequent jury found the negligent homicide was not of a dangerous nature.
The possession of drug paraphernalia charge was not presented to the jury because it was dismissed without prejudice before trial.
¶6 The court sentenced Barnes to 2.5 years of imprisonment for negligent homicide, followed by 2.25 years of imprisonment for felony endangerment. The court also sentenced Barnes to time served for driving with an illegal drug or its metabolite and suspended the imposition of sentence for the remaining counts. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Jury Instruction
¶7 We review for an abuse of discretion whether a jury instruction was properly given or refused, but review de novo whether jurors were properly instructed on the law. State v. Dann , 220 Ariz. 351, ¶ 51, 207 P.3d 604 (2009). "A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury." A.R.S. § 13-1201(A). "Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor." § 13-1201(B).
¶8 Here, count three indicted Barnes for "recklessly endanger[ing] [E.F., the driver of the pickup truck,] with a substantial risk of imminent death." However the jury was instructed by the court, twice orally and twice in writing, that the crime of endangerment as alleged in the indictment as to E.F., required proof that Barnes "disregarded a substantial risk that his conduct would cause imminent death or physical injury , and ... did in fact create a substantial risk of imminent death or physical injury ." (Emphasis added.) The jury found Barnes guilty of endangerment and the court designated the offense a class-six felony. Barnes did not object to the instruction at trial, so we review solely for fundamental error. See State v. Henderson , 210 Ariz. 561, ¶ 22, 115 P.3d 601 (2005) ; State v. Gallegos , 178 Ariz. 1, 11, 870 P.2d 1097, 1106 (1994). To establish fundamental error, Barnes must prove error and show that "(1) the error went to the foundation of the case, (2) the error took from [him] a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial." State v. Escalante , 245 Ariz. 135, ¶ 21, 425 P.3d 1078 (2018).
¶9 This court has repeatedly held similar iterations of this instruction to be fundamental error. See State v. Luque , No. 2 CA-CR 2020-0111, ¶¶ 2-3, 5, 2020 WL 7353765 (Ariz. App. Dec. 15, 2020) (mem. decision); State v. Rhinehart , No. 2 CA-CR 2009-0379, ¶ 22, 2010 WL 4278504 (Ariz. App. Oct. 12, 2010) (mem. decision); State v. Duda , No. 1 CA-CR 06-1005, ¶¶ 6, 10, 2008 WL 3846314 (Ariz. App. Aug. 14, 2008) (mem. decision). But "the same error may be fundamental in one case but not in another." State v. Dickinson , 233 Ariz. 527, ¶ 12, 314 P.3d 1282 (App. 2013) (quoting State v. James , 231 Ariz. 490, ¶ 13, 297 P.3d 182 (App. 2013) ). The instruction here was erroneous because it permitted the jury to make a finding of guilt on a charge of felony endangerment on the basis of "physical injury" which is reserved for misdemeanor endangerment. See State v. Ortega , 220 Ariz. 320, ¶ 19, 206 P.3d 769 (App. 2008) ("[A]ny factor that is essential to proving an offense was committed and establishing a particular sentencing range is an element that must be submitted to a jury and proven beyond a reasonable doubt.").
To the extent we cite memorandum decisions issued before January 1, 2015, we do so to assist us in deciding whether to issue a published opinion. See Ariz. R. Sup. Ct. 111(c)(1)(B).
¶10 Failure to properly instruct a jury on an essential element of an offense is fundamental error if there is an issue as to that element. See Leon v. Marner , 244 Ariz. 465, ¶ 12, 421 P.3d 664 (App. 2018). The state argues despite our finding of fundamental error in cases with similar instructions, the error here was not fundamental because there was "no dispute ... regarding the level of endangerment [E.F.] experienced." See State v. Fullem , 185 Ariz. 134, 138, 912 P.2d 1363, 1367 (App. 1995). The record belies this argument because Barnes contested whether he had acted recklessly at all, arguing the jury must find him not guilty of endangerment. On the record before us, Barnes did not need to specifically contest the level of endangerment to place that element at issue. See Luque , No. 2 CA-CR 2020-0111, ¶ 5 (victims sustained minor injuries and slow speed of defendant's car made the degree of risk at issue). Accordingly, the error here was fundamental.
Curing the Error
¶11 The state concedes that the instruction was erroneous, but argues the error was cured by the verdict form, indictment, and the prosecutor's closing argument. We view jury instructions in context. See State v. Abdi , 226 Ariz. 361, ¶ 14, 248 P.3d 209 (App. 2011) ; see also Dann , 220 Ariz. 351, ¶ 51, 207 P.3d 604 ("We consider the jury instructions as a whole to determine whether the jury received the information necessary to arrive at a legally correct decision."). "The purpose of jury instructions is to inform the jury of the applicable law in understandable terms." State v. Noriega , 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). So while jury instructions "need not be faultless ... they must not mislead the jury in any way." Id. For the following reasons, the error here was not cured.
Verdict and Indictment
¶12 At the conclusion of the trial, the jurors were asked to find Barnes guilty or not guilty of "the offense of Endangerment, as alleged in Count Three of the Indictment." The state argues that because count three of the indictment contained only the "imminent death" language and because a "misdemeanor endangerment charge [would not] make sense" the instructional error was cured. Barnes contends the indictment did not cure the error because the instruction itself was "confusing and misleading."
¶13 The jury was instructed in writing that it was its "duty to follow [the] instructions," to "consider all of [the] instructions," and to "not pick out one instruction or part of one and disregard the others." It was also instructed that once it had "determined the facts, [it] may find that some instructions no longer apply." Although the preliminary instructions contained the indictment, those instructions also stated "the indictment is not evidence." Further, the final instructions provided the definitions of "serious physical injury" and "physical injury" and there was nothing in those instructions to correct any possible misunderstanding as to whether the jurors were constrained to find Barnes guilty only on the basis of "imminent death."
¶14 A verdict form can in some circumstances remedy an erroneous instruction. See State v. Payne , 233 Ariz. 484, ¶ 92, 314 P.3d 1239 (2013). It did not here. As a preliminary matter, the issue in Payne regarding the jury instructions coupled with verdict forms was different than the one before us. See id. ¶ 91. There, the question was whether the jury could be instructed on multiple theories of abuse when the state only charged Payne with one. Id. Our supreme court concluded there was no reversible error because the instructions were legally correct and were followed by verdict forms that were not misleading. Id. ¶ 92.
¶15 The issue in the present case is instead whether the verdict form cured an erroneous instruction from the trial court. Payne is distinguishable because the jury there did not have to refer to the indictment to determine what offense they were convicting Payne of because the verdict forms made that clear—they "specif[ied] the allegations satisfying each count" and "properly instructed the jury on the required findings." Id. Furthermore, the verdict forms, on their face, identified the degree of the offense. See A.R.S. § 13-3623. Thus, our supreme court concluded the jury was not misled. Id . The verdict forms in Payne with regard to the charges at issue stated:
In Payne the degree of the offense was established by the culpable mental state of the defendant. See Payne , 233 Ariz. 484, ¶ 71, 314 P.3d 1239 ; see also A.R.S. § 13-3623. It is unlike § 13-1201 here, where the degree of offense is established by whether the offense "involv[ed] a substantial risk of imminent death." § 13-1201(B).
We, the Jury ... do find the defendant, [Payne], guilty of child abuse ... intentionally or knowingly, under circumstances likely to produce death or serious physical injury, caused a child to suffer physical injury or, having the care or custody of a child, caused or permitted the child or health of the child to be injured or who caused or permitted a child to be placed in a situation where the child or health of the child was endangered, to wit ... as alleged in Count [Two/Three/Six] of the Indictment.
We may take judicial notice of "procedural facts reflected in the record of another superior court action." State v. Lynch , 115 Ariz. 19, 22, 562 P.2d 1386, 1389 (App. 1977).
Here, although the dissent argues the verdict form should be read as if it stated that Barnes endangered E.F. "with a substantial risk of imminent death," in fact, the verdict form only stated that Barnes was guilty "of the offense of Endangerment, as alleged in Count Three of the Indictment." Had the verdict form used the language of the statute, as was the case in Payne , and clearly limited the verdict to "imminent death" we might be compelled to conclude that it cured the erroneous instruction. However, the verdict form did not "specify[ ] the allegations satisfying each count" nor "properly instruct[ ] the jury on the required findings." Payne , 233 Ariz. 484, ¶ 92, 314 P.3d 1239. Coupled with the court's erroneous instruction, we are not convinced that the jury was not misled. See § 13-1201.
The dissent notes that the instruction accurately "tracked" the endangerment statute. Nevertheless, it was erroneous insofar as it failed to inform the jury of the need to distinguish between the felony and misdemeanor conduct encompassed thereby. See Leon , 244 Ariz. 465, ¶ 12, 421 P.3d 664.
¶16 Thus, we do not share our dissenting colleague's confidence that the verdict form's general reference to the indictment was adequate to cure the erroneous endangerment instruction. See Ariz. R. Crim. P. 23.2(d) ("If the verdict of guilty is to an offense that is divided into degrees, the verdict must specify the degree of the offense for which the jury has found the defendant guilty."). By the state's and the dissent's reasoning, to cure any misapprehension, the jurors would have been required to use the count three verdict form to direct their attention to count three of the indictment in the preliminary instructions, and we would have to presume that the jury unanimously ignored the trial court's instructions to "consider all of [the] instructions" and to "not pick out one instruction or part of one and disregard the others." See Felix , 237 Ariz. 280, ¶ 17, 349 P.3d 1117 ("[O]ur supreme court has repeatedly stated that we should presume that jurors follow the instructions provided to them."). For these reasons, the verdict and indictment did not cure the multiple direct instructions from the court to consider the plain, albeit erroneous, endangerment instruction.
A prior version of this rule stated that "If the indictment or information charges a particular degree, a verdict of guilty which does not specify a degree is a conviction of the degree charged." State v. Kelly , 5 Ariz. App. 280, 283-84, 425 P.2d 850 (1967) (quoting former Rule 23.2, Ariz. R. Crim. P.). If this was still the rule, the dissent's position would be clearly supported. We are unaware of any caselaw interpreting the current rule and the parties have not briefed this issue, but we are not persuaded by the dissent that the reference to the indictment cured the instruction, in part, because it appears a purpose of this rule change was to "insure that the verdict will be clear and non-ambiguous." Ariz. R. Crim. P. 23.2 cmt. to 1998 amend.
Although the court also instructed the jury that after it had determined the facts it may determine that an instruction "no longer appl[ies]," we reject that the jury can disregard an instruction on law that they have determined is relevant to the facts. See Youngkin v. Maurer , 74 Ariz. 67, 70, 243 P.2d 780 (1952) ("It is the duty of the jury to accept and to follow the instructions of the trial judge as the law of the case regardless of what its members may believe the law should be" and "the instructions of the trial court constitute the law of the case until it is declared to be otherwise by this court."). Rather, as the instruction states, this instruction is applicable when the jury determines an instruction is no longer factually relevant. State v. Celaya , 135 Ariz. 248, 257, 660 P.2d 849, 858 (1983).
Closing Arguments
¶17 We may also "take closing arguments into consideration in determining whether jury instructions adequately state the law." State v. Tarr , 235 Ariz. 288, ¶ 14, 331 P.3d 423 (App. 2014). The state argues that the prosecutor's closing arguments to the jury that (1) it had to be firmly convinced that "[Barnes] endangered another person with a substantial and unjustifiable risk of imminent death and that his conduct caused ... in fact did cause that imminent ... risk of imminent death" and (2) that it was reasonable to believe Barnes’ actions could "cause a crash and kill someone" were enough to cure the instructional error. Barnes contends that "neither the testimony at trial nor the state's argument made clear that imminent death was critical to the jury's determination of guilt" and points out that although the prosecutor did not explicitly argue physical injury as a basis for guilt, in his explanation of recklessness, he told the jury a story from his youth in which he had acted "reckless[ly]" with his brother on his car, knowing that there was a "substantial and unjustifiable risk he could fall off and get hurt."
¶18 "[A]rguments of counsel generally carry less weight with a jury than do instructions from the court." Felix , 237 Ariz. 280, ¶ 18, 349 P.3d 1117 (quoting Boyde v. California , 494 U.S. 370, 384, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) ). However, in some cases, "arguments of counsel can cure or obviate instructional ambiguity or error." Id. For example, in State v. Bruggeman , we determined an unartful sentence in an instruction was cured in part by closing arguments. 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989). However, there, we first determined the sentence was not fatal in the context of the instructions as a whole, and then in addition, "the final arguments clearly focused on the requirements of the statute and thus clarified any possible misunderstanding." Id.
¶19 We cannot conclude the same here. As explained above, the instructions themselves did not resolve the misleading instruction. And while the prosecutor told jurors that they had to be "firmly convince[d]" that there was a "substantial and unjustifiable risk of imminent death," the prosecutor did not "clearly focus[ ]" on the meaning of substantial risk of imminent death so as to obviate any question of whether the jury could apply substantial risk of physical injury as provided for in the instruction, see id. Nor did he explain specifically how Barnes’ actions put E.F. at substantial risk of imminent death:
[W]hat the law requires is that ... for endangerment is that the State firmly convince you that [Barnes] endangered another person with a substantial and unjustifiable risk of imminent death and that his conduct caused ... in fact did cause that imminent ... risk of imminent death. Again, I don't think there's any dispute that [Barnes] was driving, that [he] went over the raised median, ... that [he] caused the crash, that [he] pushed [the Prius] into [E.F.]’s truck and endangered him and basically caused him to be involved in the crash, which endangered him. Really no dispute there. So again the element left for your consideration in this charge is whether [Barnes] was reckless.
Further, the jurors were correctly instructed that "[w]hat the lawyers say is not evidence, but it may help [them] to understand the law and the evidence."
¶20 In sum, although our dissenting colleague's analysis may be appropriate in some cases, it is not here. The verdict form did not clearly "specify[ ] the allegations satisfying each count," Payne , 233 Ariz. 484, ¶ 92, 314 P.3d 1239 ; the prosecutor's arguments did not clearly explain how Barnes put E.F. at substantial and unjustifiable risk of imminent death rather than solely physical injury; the trial court instructed on both imminent death and physical injury; the court instructed the jury to "consider all of [the] instructions," and to "not pick out one instruction or part of one and disregard the others"; and, as explained below, the nature of the evidence supports both a finding of felony or misdemeanor endangerment. Accordingly, on the record before us, the instructional error was not cured.
Prejudice
¶21 The error here went to the "foundation of the case." See Escalante , 245 Ariz. 135, ¶ 18, 425 P.3d 1078. However, this type of error alone will not result in a reversal, Barnes must also show prejudice. Id. ¶ 21. To show prejudice, Barnes must show objectively, id. ¶ 31, "that a reasonable jury ‘could have reached a different result.’ " James , 231 Ariz. 490, ¶ 15, 297 P.3d 182 (quoting Henderson , 210 Ariz. 561, ¶ 27, 115 P.3d 601 ). This standard requires us to "examine the entire record, including the parties’ theories and arguments as well as the trial evidence." Escalante , 245 Ariz. 135, ¶ 31, 425 P.3d 1078.
Barnes does not argue on appeal which type of fundamental error applies to him, only that the instructional error was fundamental and prejudicial. While this failure to develop the argument could result in waiver of review of the claim, see Ariz. R. Crim. P. 31.10(a)(7) ; State v. King , 226 Ariz. 253, ¶ 11, 245 P.3d 938 (App. 2011), we will not ignore fundamental error when we find it. State v. Fernandez , 216 Ariz. 545, ¶ 32, 169 P.3d 641 (App. 2007). We thus conclude Barnes’ case falls under, "Prong one: An error generally goes to the ‘foundation of a case’ if it relieves the prosecution of its burden to prove a crime's elements ...." Escalante , 245 Ariz. 135, ¶ 18, 425 P.3d 1078 (citing State v. Juarez-Orci , 236 Ariz. 520, ¶¶ 1, 17, 342 P.3d 856 (App. 2015) (instruction erroneously including "serious physical injury" in second-degree murder charge went to "foundation of the case")).
¶22 Barnes argues that because E.F. only sustained minor injuries, we cannot conclude that a jury must have determined the endangerment count involved only a substantial risk of imminent death. The state counters that a reasonable jury could only conclude there was a substantial risk of imminent death because "had the Prius not been present to absorb the impact, Barnes’ full-size Impala sedan almost certainly would have collided head-on with [E.F.]’s pickup, likely at the same closing speed of 73 m.p.h." Neither of these arguments are persuasive.
The closing speed is calculated by adding the speeds of the cars when they collide. Here, Barnes struck the Prius at twenty-eight miles per hour and the officer estimated the Prius’ speed at the time of impact was forty-five miles per hour. Combined, the closing speed was approximately seventy-three miles per hour.
¶23 First, the charge of endangerment has to do with the risk created, not the result. See § 13-1201(A) ; State v. Dominguez , 236 Ariz. 226, ¶ 5, 338 P.3d 966 (App. 2014) (The statute "criminalizes conduct posing a substantial risk rather than creating an observable result."). A person need not "actually be physically injured to constitute endangerment." Campas v. Superior Court , 159 Ariz. 343, 345, 767 P.2d 230, 232 (App. 1989). So while the fact that E.F. sustained only minor injuries is relevant to our analysis, the inquiry does not end there.
¶24 Second, our caselaw is clear that "one of the elements of endangerment is that the victim must be placed in actual substantial risk of imminent death ...." See, e.g. , State v. Doss , 192 Ariz. 408, ¶ 7, 966 P.2d 1012 (App. 1998) (emphasis added). The use of the word "imminent" "avoids criminal convictions based on speculative or attenuated theories that could produce uncertainty and unpredictability." Dominguez , 236 Ariz. 226, ¶ 5, 338 P.3d 966. Thus, we are not inclined to rely on the state's hypothetical in determining whether a reasonable jury could only conclude Barnes committed felony endangerment because it was not argued at trial. See Escalante , 245 Ariz. 135, ¶ 31, 425 P.3d 1078 (in determining prejudice we "examine the entire record, including the parties’ theories and arguments as well as the trial evidence"). Rather, we look to the evidence presented at trial.
¶25 As explained above, P.L. testified to Barnes’ "erratic" driving leading up to the collision. A police accident reconstructionist testified that based on data from the "crash data retrieval" Barnes was driving at sixty-three miles per hour right before the initial collision with the median—eighteen miles per hour over the posted speed limit. He testified that while he would not expect an average driver to make that turn at any speed over fifteen miles per hour, Barnes’ car slowed significantly before hitting the Prius, due to his going over the median and application of the brakes—at the time of impact, Barnes was travelling twenty-eight miles per hour.
The reconstructionist testified it did not appear there was significant braking from the roadway evidence, but there was no way to tell how much pressure Barnes applied to the brakes—the only information available was whether the brake switch circuit was triggered on, and here it was.
¶26 E.F.’s collision was "secondary" to Barnes’ collision with the Prius. E.F. was driving "three or four car lengths" behind the Prius in the adjacent lane. E.F. testified that he saw a "cloud of dust," and did not have sufficient time to react or take his foot off the accelerator before he impacted the two cars. The reconstructionist testified that when "Barnes’ vehicle hit[ ] [the Prius] ... it just kind of stop[ped] the motion" of the Prius and redirected it, "pushing" it back into E.F.’s lane. E.F. was driving a pickup truck, which was larger than the Impala and Prius, and despite its damage, he was able to exit it and only sustained minor injuries.
¶27 While the evidence here was sufficient to support a conviction for felony endangerment, that is not the test for prejudice. See Felix , 237 Ariz. 280, ¶ 22, 349 P.3d 1117. "Nor is the test whether this court thinks another jury, properly instructed, will probably find [Barnes] guilty again. Rather, the test is whether a reasonable jury, properly instructed, could have found [Barnes] not guilty of [felony endangerment]." Id . Because of the secondary nature of the collision, because E.F. was driving a larger vehicle, and because E.F. was not seriously injured, we conclude that a reasonable jury here could have found that Barnes did not create an "actual substantial risk of imminent death" to E.F. See Doss , 192 Ariz. 408, ¶ 7, 966 P.2d 1012.
¶28 Our prior caselaw can also be instructive as to the "fact-intensive inquiry" of prejudice. Escalante , 245 Ariz. 135, ¶ 21, 425 P.3d 1078 (quoting Henderson , 210 Ariz. 561, ¶ 26, 115 P.3d 601 ). The parties compare and contrast the facts of this case with the facts in State v. Rhinehart , a memorandum decision from this court. No. 2 CA-CR 2009-0379. In Rhinehart , this court determined that a similar instruction was fundamental error, but because the defendant "unquestionably" placed others at risk of imminent death, she did not show the error was prejudicial. Id. ¶ 28. That case is not precedential nor persuasive authority, but in any event, its facts are distinguishable from this case in a few meaningful ways and we consider it insofar as it assists us in deciding whether to publish. See Ariz. R. Sup. Ct. 111(c)(1) ; Torres v. Jai Dining Servs. (Phoenix) Inc. , 250 Ariz. 147, n.5, 476 P.3d 327 (App. 2020). In Rhinehart , the jury convicted the defendant of a DUI charge. No. 2 CA-CR 2009-0379, ¶ 4. Here, the jury convicted Barnes of driving with an illegal drug or its metabolite, but acquitted him of the DUI charge. This means the jury did not find beyond a reasonable doubt that Barnes was "under the influence" or "impaired to the slightest degree by reason of being under the influence," or both. See A.R.S. § 28-1381(A)(1).
¶29 Also, in Rhinehart , the defendant was driving a truck on a highway and four witnesses testified to the defendant's driving. No. 2 CA-CR 2009-0379, ¶¶ 3, 25. Two of those witnesses testified that they had to take evasive action to avoid a collision and two witnesses testified they believed they would have been killed. Id. ¶¶ 25-27. Thus, we concluded there was enough evidence in the record to find that "no reasonable juror could have failed to find beyond a reasonable doubt that Rhinehart's driving had created an actual risk of imminent death to the other drivers in her path." Id. ¶ 28. Here, Barnes was not driving on a highway and he was driving a sedan. While P.L. testified Barnes was driving "too fast for [him] to move" and in his call to 9-1-1 after the collision he told the dispatcher that he thought there could be "potential serious injuries or a fatality"—he was the sole witness who observed and then testified to Barnes’ driving.
¶30 Additionally, in closing argument, Barnes challenged the veracity of P.L.’s testimony and his memory given the traumatic event. He called attention to the fact that P.L. said he was calculating Barnes’ speed but was at the same time calling 9-1-1, getting Barnes’ license plate number, and driving. Barnes discussed how P.L. described his driving as "pinballing" and hitting curbs on both sides of the roadways for approximately three-and-a-half miles, but questioned how at the speeds P.L. stated he was driving, he did not lose control of his car earlier or damage it.
¶31 Barnes also drew attention to the fact that P.L. left the scene after the collision and suggested this was because he was young, and it traumatized him, which made it difficult for him to remember accurately. P.L. testified that he did not see the Prius when he witnessed the collision and did not notice it until he came back to the scene. He additionally testified that the truck E.F. was driving was tan, when E.F. testified that it was silver. While testifying, P.L. repeatedly asked to refer back to prior transcripts and testified that he was in "shock" and "out of breath" after the accident happened. P.L. stated that while he was on the phone with 9-1-1, things were "a little blurry" but that by the time he got back to the accident he "had some time to compose himself." Given that he was the sole witness who observed and then testified to Barnes’ driving, and based on the rest of the record before us, we conclude a reasonable jury could have found Barnes not guilty of felony endangerment as to E.F. Accordingly, the instruction and the court's subsequent designation of the offense as a class-six felony, was fundamental, prejudicial error.
Because we find reversible error here, we need not address Barnes’ argument regarding duplicity and a nonunanimous jury verdict.
¶32 Barnes further argues that based on State v. Carpenter , we should modify his class-six felony conviction to a class-one misdemeanor. 141 Ariz. 29, 31, 684 P.2d 910, 912 (App. 1984) ("Where an offense is a felony only because of the existence of a necessary element that distinguishes it from a misdemeanor offense, it is not a felony in the absence of a determination that the element is present."). However, in Carpenter , the court did not reduce the endangerment offense from a felony to a misdemeanor, rather it only determined the defendant could not be impeached with the prior endangerment conviction. Id. As explained above, a reasonable jury, properly instructed, could find Barnes not guilty of felony endangerment, see Felix , 237 Ariz. 280, ¶ 22, 349 P.3d 1117, however, a reasonable jury properly instructed could still find Barnes guilty of felony endangerment, so we will not reduce the offense to a misdemeanor on appeal.
Disposition
¶33 For the foregoing reasons, we vacate Barnes’ conviction and sentence for endangerment, and remand for retrial on that count alone. We affirm Barnes’ remaining convictions and sentences.
BREARCLIFFE, Judge, dissenting:
¶34 I respectfully dissent because there was nothing legally or contextually incorrect about the endangerment instruction given by the trial court. And, because the jury verdict expressly incorporated the charge in the indictment—that Barnes "endangered" E.F. "with a substantial risk of imminent death"—there is no reason to believe that the jury meant to convict him of the less serious conduct of merely placing E.F. at risk of physical injury. We therefore have no grounds to set aside the jury verdict regardless of what we think the jury really meant to do.
The Endangerment Instruction Correctly Stated the Law
¶35 Importantly, as a general rule we do not find jury instructions given by the trial court to be reversible error where the instructions are not, in fact, erroneous. Cf. State v. Lewis , 236 Ariz. 336, ¶ 38, 340 P.3d 415 (App. 2014) (harmless error not reversible). But the majority does so here. Consistent with the written, standardized instruction provided to the jury in deliberations, the oral instruction from the court was:
The crime of endangerment as alleged in Count Three requires proof of the following: The defendant disregarded a substantial risk that his conduct would cause imminent death or physical injury; and the defendant's conduct did in fact create a substantial risk of imminent death or physical injury.
Under A.R.S. § 13-1201(A), "[a] person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury." The instruction, therefore, even though encompassing both felony-level and misdemeanor-level endangerment, substantively tracked the law.
¶36 Additionally, the evidence in the case—that Barnes endangered the victim by crossing over a roadway median at high speed, striking another car head-on, killing its driver, then pushing that now-destroyed car into E.F.’s truck—supported either a felony or misdemeanor conviction. Certainly E.F. could not have been placed at risk of imminent death without minimally being placed at risk of physical injury. The instruction therefore also tracked the facts.
¶37 Consequently, even though the state organized its case to assert only felony endangerment, the trial court gave the jury an instruction that conformed both to the law and the facts of the case. Therefore, it was not, in isolation, error to give the instruction. Even so, as discussed below, we view instructions in context in judging error.
The Verdict Form and Closing Argument Explained the Verdict
¶38 In evaluating alleged error, we do not view jury instructions in a vacuum, but rather in context. State v. Bruggeman , 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989). That context can include both the prosecutor's closing arguments and the verdict forms. In context, it is more than reasonable to conclude the jury intended to convict Barnes of felony endangerment, and that the trial court correctly entered a felony judgment. ¶39 Despite the majority's doubt, the only evidence of the jury's deliberations and intent is the written endangerment verdict form the jury produced, signed by the foreman. That verdict form, a copy of which the jury had throughout deliberations, stated: "We, the Jury, duly impaneled and sworn in the above-entitled action, upon our oaths, do find the defendant, JARRAD TREVOR BARNES, [space provided for jury finding] of the offense of Endangerment, as alleged in Count Three of the Indictment." The indictment for count three, a copy of which the jury was provided at the outset of the trial (and, typically, something a jury also has throughout deliberations), and which the court described as "a statement of the charges," stated: "On or about the 7th day of May, 2016, [Barnes] recklessly endangered [E.F.] with a substantial risk of imminent death, in violation of A.R.S. § 13-1201."
Barnes elected not to poll the jury before acceptance of the verdicts.
¶40 Given the verdict form's express incorporation of the indictment, the documents must be read together and, when read together, the jury's verdict was in fact: We, the Jury, duly empaneled and sworn in the above-entitled action, upon our oaths, do find the defendant, JARRAD TREVOR BARNES, GUILTY of the offense of Endangerment by recklessly endangering E.F. with a substantial risk of imminent death . That conduct is a felony.
¶41 Even if the jury instruction the trial court gave were incorrect as the majority concludes, the majority, citing State v. Payne , 233 Ariz. 484, 314 P.3d 1239 (2013), acknowledges that a verdict form can remedy an erroneous instruction. It does not, however, sufficiently distinguish Payne and show why the verdict form here does not similarly cure the defect it sees in the court's instruction.
¶42 In Payne , the state charged Payne with three counts of child abuse:
Count 2 charged Payne with knowingly or intentionally causing or permitting [one child's] bones to be broken under circumstances likely to cause death or serious physical injury. Count 3 alleged that Payne knowingly or intentionally caused or permitted [that same child's] health to be endangered under circumstances likely to cause death or serious physical injury by failing to seek medical attention for [her] or allowing her to starve to death. Count 6 alleged the same as Count 3 with respect to [another child].
Id. ¶ 80.
¶43 At the instruction phase, the trial court combined the instructions for the three counts of child abuse, reciting as to each count the three means for committing the crime. Id. ¶ 91 (one "intentionally or knowingly causing the child to suffer physical injury," two "having the care or custody of a child[,] intentionally or knowingly causes or permits the person or health of the child to be injured," and three "having the care or custody of a child[,] intentionally or knowingly causes or permits the child to be placed in a situation where the person or health of the child is in danger.") (alterations in Payne ). It then "also combined all three methods of child abuse in each count" when orally describing the verdict forms. Id. As our supreme court explained: "For example, the verdict form for the child abuse counts for breaking [the child's] bones" as orally pronounced by the trial court "included all three methods of committing child abuse under the statute, even though the indictment only alleged the ‘cause or permit the person or health of the child to be injured’ variation." Id. Payne was convicted on all three counts. Id.
¶44 Payne asserted on appeal that the trial court erred in instructing the jury "on the child abuse theory of causing physical injury because the State did not allege that type of abuse." Id. ¶ 91. Notwithstanding the instructions given by the court, which included a form of abuse not charged by the state, the supreme court recognized that the "verdict forms specif[ied] the allegations satisfying each count." Id. ¶ 92. The supreme court ultimately held that "[b]ecause these forms properly instructed the jury on the required findings, the jurors were not misled and there was no reversible error." Id.
An example of that specification was shown by the state in Payne in its briefing discussing one of the verdict forms: "Regarding Count Two, the verdict form specified that Payne caused or permitted [the child's] bones to be broken." Answering Brief of Appellee, Arizona v. Payne , 233 Ariz. 484, 314 P.3d 1239 (2013) (No. CR-2007-0973), 2012 WL 3590144, at *74.
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¶45 What our supreme court found to be so in Payne is no less so here. Even though the trial court's standard instruction included a means of committing endangerment that the state was not ultimately asserting, the verdict form clarified what the state was claiming and what the jury ultimately found: that Barnes endangered E.F. "with a substantial risk of imminent death" as alleged in the indictment. Payne controls here.
¶46 We also permit the state's closing argument to resolve ambiguities left by an imprecise instruction. See State v. Johnson , 205 Ariz. 413, ¶ 11, 72 P.3d 343 (App. 2003) (appellate courts "consider [jury] instructions in context and in conjunction with the closing arguments of counsel" when evaluating instructions); Bruggeman , 161 Ariz. at 510, 779 P.2d 823 (holding closing argument clarified any possible misunderstanding and explaining "[c]losing arguments of counsel may be taken into account when assessing the adequacy of jury instructions."). In Bruggeman , with respect to public sexual indecency charges, the trial court instructed:
A person commits public sexual indecency to a minor by intentionally or knowingly fondling or manipulating any part of the genitals, directly or indirectly, and such person is reckless whether a person under the age of 15 is present.
Indirectly touching includes touching done through the clothing.
161 Ariz. at 510, 779 P.2d 823. The defendant contended on appeal that the court, "by including the word ‘touching’ in the instruction, bypassed the more precise requirements of the first paragraph and, in effect, told the jury it could convict appellant for touching himself in any manner whatever." Id. We, however, explained:
Although the last sentence of the instruction is not drafted as artfully as it should be, we find the error was not fatal when the sentence is read in the context of the whole instruction. Furthermore, the final arguments clearly focused on the requirements of the statute and thus clarified any possible misunderstanding. We find that the jury could not have been misled by the instruction.
Id.
¶47 Here, not only did the verdict form clarify what the jury found, as in Bruggeman , the state's argument, after all the evidence was in, made plain what the state was alleging when it argued:
what the law requires ... for endangerment is that the State firmly convince you that the defendant endangered another person with a substantial and unjustifiable risk of imminent death and that his conduct caused—in fact did cause that imminent—risk of imminent death.
In light of the context, the jury could have had no reasonable doubt that the state was seeking a conviction for, what amounted to, felony endangerment.
Other Cases
¶48 Notwithstanding Payne and Bruggeman and the like, the majority cites three unpublished cases, claiming we have "repeatedly held" similar instructions to be fundamental error. It does so to illustrate this issue as a continuing problem. These cases, though, are not the same as this one and only serve to prove the rule cited by the majority itself: what may be error in one case, may not be an error in another. State v. Dickinson , 233 Ariz. 527, ¶ 12, 314 P.3d 1282 (App. 2013).
¶49 In State v. Rhinehart , No. 2 CA-CR 2009-0379, ¶ 22, 2010 WL 4278504 (Ariz. App. Oct. 12, 2010) (mem. decision), the jury did not specify by its verdict the level of endangerment it found. As the court characterized the appealing defendant's argument:
Rhinehart next challenges her conviction of felony endangerment because "[t]he jury instruction allowed the jury to convict [her] of endangerment based on a substantial risk of either imminent death ... or physical injury ..., without specifying on which basis it found [her] guilty."
Id. ¶ 20 (alterations in Rhinehart ). The verdict form, unlike that here, did not incorporate any other language or document to provide clarification. The state, in its answering brief, explained that, "[t]he jury's verdict form finding Appellant guilty of endangerment stated ‘We, the Jury, ... do find the defendant GUILTY of the crime of ENDANGERMENT.’ " Answering Brief of Appellee, State v. Rhinehart , No. 2 CA-CR 2009-0379, 2010 WL 2992499, ¶ 9 (alteration in brief). The Rhinehart jury, therefore, unlike the jury here, did not incorporate the allegations of the indictment into its endangerment verdict.
¶50 Similarly, in State v. Duda , No. 1 CA-CR 06-1005, 2008 WL 3846314 (Ariz. App. Aug. 14, 2008) (mem. decision), there was no specific finding by the jury of the level of endangerment and the verdict form did not incorporate any other clarifying language. As the state explained in its brief: "The verdict form given to the jurors for the endangerment counts simply stated ‘We the jury ... do find the Defendant, Randy Duda, on the charge of ‘endangerment’ ..." Answering Brief of Appellee, State v. Duda , No. 1 CA-CR 06-1005, 2008 WL 2199338, at *11 (alterations in brief). And no special verdict form was given to the jury for the endangerment counts. Id . As with Rhinehart , then, the verdict in Duda was completely without explanation, making Duda a different case.
¶51 The majority also cites State v. Luque , No. 2 CA-CR 2020-0111, 2020 WL 7353765 (Ariz. App. Dec. 15, 2020) (mem. decision). As here, the verdict form in Luque incorporated the indictment language of felony endangerment by reference. But it is still a distinguishable case. In Luque , like the majority here, we concluded the trial court's instruction embracing both possible forms of endangerment was erroneous and designated the convictions as misdemeanors. Id. ¶¶ 5-6. But there, the state confessed error, did not argue that the indictment language incorporated into the verdict form clarified the verdict, and indeed, even argued that the facts of the case did not support a claim of risk of imminent death. See Answering Brief of Appellee, State v. Luque , No. 2 CA-CR 2020-0111, at ¶¶ 8-12. And, rather than arguing, as the state does here, that the verdict form incorporated a jury finding of risk of imminent death, it argued the opposite—that "the verdict forms did not require any such findings." Id. ¶ at 9. Not surprisingly then, because the state confessed error, admitted the facts did not support a felony conviction, and denied that the verdict form clarified the jury's finding, and because the incorporated indictment language seemingly did not come up at all, we did not analyze the effect of the incorporated language.
Conclusion
¶52 We presume that jurors follow instructions from the trial court and that reasonable jurors will disregard any instructions that become inapplicable in light of the evidence. State v. Peraza , 239 Ariz. 140, ¶ 23, 366 P.3d 1030 (App. 2016). We also ought to presume that, if they found the verdict form unclear in light of any instruction, the jurors would have asked for clarification. See State v. Hutton , 143 Ariz. 386, 391, 694 P.2d 216, 221 (1985) (not error for jury to ask questions of court during deliberations). Even so, there was a risk that the jurors here did not read the verdict form thoroughly and then review the indictment. But we have no basis for assuming that they did not. Certainly we know they did not ask any questions of the court about the verdict form. The only evidence of the jury's deliberations on this point is the written endangerment verdict it produced, signed by the foreman, consistent with the evidence presented and arguments made, embracing the elements of felony endangerment.
¶53 The risk to the state's pursued course here was not that Barnes might be improperly found to have committed felony endangerment on insufficient evidence, but rather that he might not have been found guilty of any degree of endangerment despite the evidence. If the jury did not believe that Barnes had placed the victim at substantial risk of imminent death, but only of physical injury, it should have found him "not guilty" of the felony charge encompassed within the verdict form. And then, having no other verdict form encompassing the misdemeanor offense, it should have rendered no further verdict at all. ¶54 Our role on review is not to ensure a pristine trial. Rather, the purpose of appeal is to ensure that substantial justice has been done. Ariz. Const. art. VI, § 27 ("No cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done."); see State v. Hickman , 205 Ariz. 192, ¶ 22, 68 P.3d 418 (2003). Here, the facts of the case supported a conviction for felony endangerment, and the jury issued a verdict incorporating a finding that Barnes endangered E.F. "with a substantial risk of imminent death." Barnes was convicted and sentenced accordingly. Substantial justice was done. At a minimum, this court has insufficient reason to conclude that substantial justice was not done or that fundamental error occurred. Therefore, I respectfully dissent.