State v. Ruiz, 2 CA–CR 2013–0116.

• Decision Date: 25 November 2014
• Docket Number: No. 2 CA–CR 2013–0116.,2 CA–CR 2013–0116.
• Citation: 700 Ariz. Adv. Rep. 4,340 P.3d 396,236 Ariz. 317
• Parties: The STATE of Arizona, Appellee, v. Adolfo Noel RUIZ Jr., Appellant.
• Court: Arizona Court of Appeals

236 Ariz. 317

340 P.3d 396

700 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee

v.Adolfo Noel RUIZ Jr., Appellant.

No. 2 CA–CR 2013–0116.

Court of Appeals of Arizona, Division 2.

Nov. 25, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel By Jonathan Bass, Assistant Attorney General, Phoenix, Counsel for Appellee.

Joel A. Larson, Cochise County Legal Defender, Bisbee, Counsel for Appellant.

Presiding Judge MILLER authored the opinion of the Court, in which Chief Judge ECKERSTROM and Judge ESPINOSA concurred.

OPINION

MILLER, Presiding Judge.

¶ 1 We previously issued an opinion in this matter. State v. Ruiz, 236 Ariz. 15, 335 P.3d 537 (App.2014). On Adolfo Ruiz's motion for reconsideration and in light of certain points raised concerning that portion of our decision addressing the trial court's restitution order, we grant the motion, vacate our prior opinion, and issue this new opinion in its stead.

¶ 2 Ruiz was convicted after a jury trial of two counts of attempted manslaughter by sudden quarrel or heat of passion, and one count of aggravated assault with a deadly weapon or dangerous instrument. This appeal requires us to determine whether a person commits attempted sudden quarrel or heat of passion manslaughter if death does not occur, the person knew only that his conduct would cause “serious physical injury,” and he did not intend for his conduct to cause death. For the following reasons, we affirm Ruiz's aggravated assault conviction and sentence, but vacate his attempted manslaughter convictions and sentences, and remand for further proceedings.

Factual and Procedural Background

¶ 3 We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Haight–Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). In January 2012, Ruiz was involved in a fist-fight in a bar that began with a shove from M.M. As he was being escorted outside by C.R., he produced a gun and fired two shots that struck C.R. Ruiz was then pushed out of the bar and onto the ground, causing him to drop the gun. Ruiz immediately picked it up and shot M.M. Ruiz testified he was in fear of his life from multiple persons; further, the bullets that struck C.R. and M.M. were either warning shots or inadvertent discharges caused by struggles with other people as they grappled to get the gun.

¶ 4 The indictment charged Ruiz with two counts of attempted second-degree murder. He also was charged with aggravated assault for each of the shots that struck C.R. and M.M. The jury found Ruiz guilty of two counts of the lesser-included offense of attempted manslaughter, and one count of aggravated assault against M.M.¹ The jury acquitted Ruiz of two counts of aggravated assault against C.R. He was sentenced to presumptive, consecutive, and concurrent prison terms totaling fifteen years.

Attempted Manslaughter

¶ 5 Ruiz does not challenge the sufficiency of the evidence to support his convictions, but argues the trial court improperly instructed the jury. He contends the court's instruction permitted the jury to find him guilty of attempted manslaughter based only on conduct intended to cause serious physical injury. Stated differently, he maintains the state was relieved of the burden of proving he had engaged in conduct intended to culminate in death. Because Ruiz raises this argument for the first time on appeal, we review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607 (2005).

Attempted Manslaughter Instruction

¶ 6 The trial court instructed the jury that if it found Ruiz not guilty of attempted second-degree murder or if it could not reach a verdict on that charge, it could consider whether he had committed attempted manslaughter under A.R.S. § 13–1103(A)(2). The court defined the latter as follows:

The crime of manslaughter by sudden quarrel or heat of passion requires proof that:

A person intentionally killed another person; or

A person caused the death of another person by conduct which the defendant knew would cause death or serious physical injury; and

A person acted upon a sudden quarrel or heat of passion; and the sudden quarrel or heat of passion resulted from adequate provocation by the person who was killed.

(Emphasis added.)

¶ 7 Ruiz relies on State v. Ontiveros, 206 Ariz. 539, 81 P.3d 330 (App.2003), for the proposition that the requisite mens rea for attempt to commit manslaughter under § 13–1103(A)(2) is the intent or belief that one's conduct will cause death. In Ontiveros, we held that attempted second-degree murder is not a cognizable offense if the person does not intend or know² that his conduct will cause death. Id. ¶ 11. We reasoned that a person who does not intend or know that his conduct will cause death cannot be said to have taken action “planned to culminate” in death. Id. ¶ 10. Attempted second-degree murder therefore requires either the intention or the knowledge that one's conduct will cause death to the victim. Id.

¶ 8 Ruiz contends the rationale employed in Ontiveros should extend to attempted³ manslaughter, under § 13–1103(A)(2). Subsection (A)(2) of that statute explicitly incorporates the elements of second-degree murder:

A person commits manslaughter by:

....

Committing second degree murder as defined in § 13–1104, subsection A upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim.

This offense includes a “different circumstance” of sudden quarrel or heat of passion resulting from adequate provocation by the victim. Peak v. Acuna, 203 Ariz. 83, ¶ 6, 50 P.3d 833, 834 (2002) (lesser offense of manslaughter by sudden quarrel/heat of passion includes all elements of greater offense of second-degree murder plus different required circumstance). The additional circumstance, however, does not negate the mandatory elements of second-degree murder. Therefore, we conclude the rationale employed in Ontiveros applies to attempted manslaughter under § 13–1103(A)(2).

¶ 9 The state does not attempt to distinguish Ontiveros. Rather, it observes in a footnote that attempted manslaughter by heat of passion or sudden quarrel is a cognizable offense in Arizona, citing State v. Barnes, 162 Ariz. 92, 781 P.2d 69 (App.1989). A minor, passing reference without argument generally is insufficient. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (argument not developed on appeal waived). In our discretion, however, we address the implications of Barnes. See State v. Aleman, 210 Ariz. 232, ¶ 10, 109 P.3d 571, 575 (App.2005).

¶ 10 In Barnes, the defendant shot the victim at close range with a rifle, yet he survived. 162 Ariz. at 93, 781 P.2d at 70. Barnes was convicted of attempted manslaughter pursuant to § 13–1103(A)(2). Id. He argued “there is no such crime as attempted heat of passion or sudden quarrel manslaughter,” relying on State v. Adams, 155 Ariz. 117, 120–21, 745 P.2d 175, 179–80 (App.1987), in which we held the offenses of attempted reckless manslaughter and attempted negligent homicide are not cognizable offenses in Arizona because one could not attempt to commit a crime that only required reckless conduct or criminal negligence and not a specific intent. Barnes, 162 Ariz. at 93, 781 P.2d at 70. In the alternative, Barnes argued attempted heat of passion or sudden quarrel manslaughter required the jury to be instructed that it must find proof of specific intent to kill, rather than only the intent to shoot the victim. Id. In rejecting both arguments the court distinguished Adams on the basis that, “[w]hat must be ‘intentional’ is the conduct.” Id. The court tersely concluded that evidence of intentional shooting, knowing “the shooting would cause death or serious physical injury,” was sufficient. Id.

¶ 11 Barnes was not addressed by the court in Ontiveros, nor has it been cited in any subsequent Arizona opinions. Several out-of-state cases have cited Barnes where there was evidence of intent to kill, but in none of these cases was it cited for the proposition that intent to cause only bodily injury is sufficient to support the offense of attempted manslaughter. See, e.g., State v. Holbron, 80 Hawai‘i 27, 904 P.2d 912, 923 (1995) ; State v. Gutierrez, 285 Kan. 332, 172 P.3d 18, 25 (2007). In contrast, Ontiveros has been affirmed within Arizona and cited in a national treatise on criminal law. See State v. Dickinson, 233 Ariz. 527, ¶ 11, 314 P.3d 1282, 1285 (App.2013) (attempted second-degree murder requires intent to kill victim or knowledge conduct would cause death); 2 Wayne R. LaFave, Substantive Criminal Law § 11.3 (2d ed.2013) (on charge of attempted murder not sufficient to show defendant intended to do serious bodily harm). To the extent Barnes can be read as standing for the proposition that a jury may be instructed that the intent to commit serious physical injury is sufficient proof for attempted manslaughter, the state conceded at oral argument that Barnes has been overtaken by recent jurisprudence that more comprehensively addresses the question here. We agree and conclude that the instruction erroneously permitted the jury to consider conduct the defendant may have intended or believed would cause only serious physical injury.

Fundamental Error Analysis

¶ 12 To establish fundamental error, a defendant must show “that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial.”Henderson, 210 Ariz. 561, ¶ 24, 115 P.3d at 608. This court has previously determined “that instructing a jury on a non-existent theory of criminal liability is fundamental error.” State v. James, 231 Ariz. 490, ¶ 13, 297 P.3d 182, 185 (App.2013) ; see also Dickinson, 233 Ariz. 527, ¶ 12, 314 P.3d at 1285 ; Ontiveros, 206 Ariz. 539, ¶ 17, 81 P.3d at 333. Because the attempted manslaughter instruction misstated the law, it had the potential to “improperly relieve[ ] the State of...