State v. Brown

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DEAN JACOB BROWN, Appellant.

No. 1 CA-CR 23-0123

FILED 09-10-2024

Appeal from the Superior Court in Maricopa County

No. CR2022-116166-001

The Honorable Justin Beresky, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Casey D. Ball

Counsel for Appellee

Grand Canyon Law Group, Mesa

By Eva R. Fa’alogo, Angela Poliquin

Counsel for Appellant

STATE v. BROWN

Opinion of the Court

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in

which Judge Jennifer B. Campbell joined and Judge Michael J. Brown

specially concurred.

T H U M M A, Judge:

¶1 Defendant Dean Brown appeals from his convictions and

resulting sentences for aggravated assault, disorderly conduct and

possession or use of dangerous drugs. Brown argues the superior court

erred in failing to give a self-defense justification jury instruction even

though he never requested such an instruction. Because Brown has shown

no error, his convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 One evening in May 2022, the victim visited his father’s

apartment in Mesa. The victim’s father shared the apartment with Brown

and others. The victim and his father saw Brown holding a machete,

standing on the roof of the apartment complex. Brown began “mumbling

something about his dad” and got off the roof.

¶3 Still holding the machete, Brown followed the victim and his

father into the apartment and stood in the doorway of the father’s bedroom.

The victim testified that Brown was “waving” the machete and “faked”

swinging it at him. After sitting down, the victim felt something strike him

in the back of the neck, causing him to fall. Brown was holding the machete

in the air and attacked the victim. The victim suffered a laceration on his

neck and received medical care at a nearby hospital. When Brown was

arrested, police found “a white crystal rocklike substance” in his pants,

which later tested positive for methamphetamine.

¶4 As relevant here, Brown was charged with aggravated

assault, a Class 3 dangerous felony; three counts of disorderly conduct,

Class 6 dangerous felonies; and one count of possession or use of dangerous

drugs, a Class 4 dangerous felony.

2

STATE v. BROWN

Opinion of the Court

¶5 In a pretrial disclosure, Brown stated he “may” raise nearly

two dozen possible defenses at trial, including self-defense and

justification. The disclosure added, however, that it was “too early in the

proceedings” to provide a complete list, noting “[a] more specific list may

be provided as the case progresses.” Brown, however, never provided a

more specific list of defenses he intended to pursue at trial. In fact, Brown

never argued or mentioned self-defense or justification after that initial

disclosure. In their joint pretrial statement, the parties noted that any

requested jury instructions “will be submitted to the trial court judge at the

beginning of trial, if needed.” Brown did not request or submit a self-

defense or justification jury instruction.

¶6 At a five-day jury trial in January 2023, the victim, his father,

various police officers and others testified in the State’s case in chief. After

the State rested, Brown elected to testify on his own behalf, as was his right.

Brown testified that his interaction with the victim and the victim’s father

was “like an interrogation.” He added that while all three were in the

bedroom, the victim’s father “reached into [a] drawer” and Brown saw a

“firearm in his hand.” After seeing the gun, Brown “tried to leave the room”

but got into a “struggle” with the victim. Brown claimed that, during the

struggle, he and the victim were both trying to gain control of the machete,

which was on the ground. Brown added the victim “lung[ed]” at him and,

in response, he instinctively “swung the machete and it hit” the victim.

Brown testified that he “felt like [he] needed to defend” himself and that he

“had nowhere to go.”

¶7 The court reviewed final jury instructions with the parties

several times. At no point did Brown’s counsel request or mention a self-

defense or justification jury instruction. In closing arguments, Brown’s

counsel did not argue self-defense or justification, focusing instead on

witness credibility, the burden of proof and the sufficiency of the evidence.

¶8 During deliberations, the jury submitted a question asking,

“what are the laws on self-defense?” Even then, Brown’s counsel did not

argue self-defense or justification. Instead, when addressing the question

with the court, Brown’s counsel stated, “we didn’t put any of that in the

instruction.” The court agreed, noting “[n]o self-defense instruction was

requested or given. My proposed answer is, the final jury instructions

contain all of the legal principles that pertain to your deliberations in this

matter. Any legal principles not contained in the final jury instructions

would not be relevant to your deliberations in this case and should not be

considered by you.” Brown’s counsel responded: “That works for me.” The

court then provided the proposed answer to the jury.

3

STATE v. BROWN

Opinion of the Court

¶9 After further deliberations, the jury found Brown guilty of

aggravated assault, one count of disorderly conduct and possession or use

of dangerous drugs. The jury found Brown not guilty of the other two

disorderly conduct charges. The jury then found the State had proven

beyond a reasonable doubt that the aggravated assault both involved the

infliction or threatened infliction of serious physical injury and caused

physical, emotional or financial harm to the victim.

¶10 Given Brown’s prior criminal history, the court sentenced him

as a Category 3 repetitive offender to three concurrent prison terms: (1) 20

years for aggravated assault, the maximum term; (2) 3.75 years for

disorderly conduct, the presumptive term and (3) 10 years for possession

or use of dangerous drugs, the presumptive term. The court properly

awarded Brown 303 days of presentence incarceration credit. This court has

jurisdiction over Brown’s timely appeal pursuant to Article 6, Section 9, of

the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-

4033(A) (2024).1

DISCUSSION

¶11 Brown argues the superior court erred by not, on its own

motion, instructing the jury on the self-defense justification under A.R.S. §

13-404 for the aggravated assault charge. Brown never requested such an

instruction, did not object when no such instruction was given and

disavowed relying on self-defense when responding to the jury’s question.

As a result, this court’s review on appeal is for fundamental error resulting

in prejudice. Ariz. R. Crim. P. 21.3(b); State v. Escalante, 245 Ariz. 135, 142 ¶

21 (2018). Brown has the burden to establish that (1) error occurred, (2) the

error was fundamental and (3) the error caused him prejudice. State v. James,

231 Ariz. 490, 493 ¶ 11 (App. 2013) (citing cases). On this record, Brown has

shown no error.

¶12 “[I]f the case is tried to a jury, the trial court must give a self-

defense instruction, if requested and supported by . . . the slightest

evidence.” State v. Carson, 243 Ariz. 463, 467 ¶ 16 (2018). Had Brown

requested a self-defense justification jury instruction, the trial court would

have been required to give it recognizing Brown’s testimony certainly

provided “the ‘slightest evidence’” that he acted in self defense. Carson, 243

Ariz. at 467 ¶ 16-17. Because Brown made no such request, the question is

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

4

STATE v. BROWN

Opinion of the Court

whether the court had an obligation to give such an instruction on its own

motion.

¶13 The parties cite no Arizona case holding that a superior court

has a duty, on its own motion, to instruct the jury on potentially applicable

justification defenses. The briefs on appeal address two Arizona Supreme

Court directives on the issue, coming from State v. Avila, 147 Ariz. 330 (1985)

and then State v. Gendron, 168 Ariz. 153, 154 (1991). Each case merits

discussion.

A. State v. Avila.

¶14 In Avila, the defendant and two accomplices were convicted

of various offenses arising out of their robbery of a convenience store, even

though no accomplice liability jury instruction was requested or given. 147

Ariz. 330, 332-33 (1985). On appeal, the defendant argued his robbery

convictions had to be vacated given “the failure to instruct the jury on when

someone is an accomplice and accordingly liable for the acts of others.” 147

Ariz. at 332, 337. Avila held the failure to give an accomplice liability jury

instruction on the court’s own motion “was error, but on the facts”

presented “was non-prejudicial.” Id. at 338. Avila explained:

a trial court has a duty to instruct on the law

relating to the facts of the case when the matter

is vital to a proper consideration of the

evidence, even if not requested by the defense

and failure to do so constitutes fundamental

error. This duty applies to the failure to give an

instruction accurately defining all the elements

of aiding and abetting.

Id. at 337 (citing State v. Evans, 109 Ariz. 491, 493 (1973); State v. Price, 123

Ariz. 197, 199 (App. 1979), aff’d in part, rev’d and remanded in part, 123 Ariz.

166 (1979) and United States v. Bryant, 461 F.2d 912 (6th Cir. 1972)).

¶15 The cases Avila cited involved claims that the trial court failed

to properly instruct the jury on an element of a charged offense, not a

defense or justification. See Evans, 109 Ariz. at 492-93 (“[g]enerally, the

failure to give an instruction which has not been requested is not error;”

noting trial court’s failure to instruct the jury of “a necessary element of

robbery” was not fundamental error on the facts presented); Price, 123 Ariz.

at 199 (where State charged defendant “was an aider and abettor,”

reversing conviction because jury instruction did not accurately define

elements of aiding and abetting); Bryant, 461 F.2d at 920, 921 (“we agree

5

STATE v. BROWN

Opinion of the Court

with appellant that the jury instruction on aiding and abetting was ‘grossly

inadequate’ . . . ‘It is a grave error to submit the case without accurately

defining the offense charged and its elements. Such an error is not excused

or waived by failure to request a proper instruction.’”) (citation omitted).

¶16 Cases applying Avila do so for the proposition that “[t]he

failure to instruct the jury on an essential element of an offense is error.”

State v. Fullem, 185 Ariz. 134, 138 (App. 1995) (citing Avila in addressing

claimed error in accomplice liability jury instruction); accord State v. Portillo,

179 Ariz. 116, 120-21 (App. 1994) (citing Avila in holding inadequate jury

“instruction on the elements necessary for a conviction for conspiracy” was

fundamental error), vacated in part on other grounds in State v. Portillo, 182

Ariz. 592 (1995).

¶17 Avila, the cases cited in Avila, and the cases applying Avila

each stand for the proposition that a trial court must properly instruct the

jury on the elements of the charged offenses. None of those cases discuss or

impose on the trial court a duty, on its own motion, to instruct on potential

justifications. Here, Brown does not argue that the superior court failed to

properly instruct the jury on the elements of any of the charged offenses.

Simply put, despite broad language in Avila, that case and its progeny

provide no basis to impose a sua sponte duty on the trial court to instruct

the jury on potential justification defenses.

B. State v. Gendron.

¶18 In Gendron, decided six years after Avila, the defendant

requested a justification jury instruction for an unlawful flight charge, but

“specifically disclaimed reliance on a justification defense” for aggravated

assault and criminal damage charges. 168 Ariz. 153, 154-55 (1991). On

appeal, this Court concluded the superior court erred in failing to give

justification instructions on the aggravated assault and criminal damage

counts “sua sponte, even in the face of defendant’s disclaimer in the trial

court.” 168 Ariz. at 154. The Arizona Supreme Court reversed, concluding

this Court erred in “reach[ing] justification instruction issues on the

aggravated assault and criminal damage counts.” Id. at 155. In doing so, the

Arizona Supreme Court noted that “even the failure to give a presumption

of innocence instruction is not per se fundamental error in a criminal case.”

Id. Gendron concluded that “[n]either the fundamental error doctrine nor

any other doctrine” justified this Court’s “insertion of a new defense into

the case.” Id. Stated differently, Gendron concluded that the failure of the

trial court, on its on motion, to give a justification jury instruction was not

error.

6

STATE v. BROWN

Opinion of the Court

¶19 Although Gendron did not cite Avila, Arizona cases predating

both have come to this same conclusion. See, e.g., State v. Lucas, 146 Ariz.

597, 604 (1985) (“unless failure to instruct the jury would fundamentally

violate defendant’s right to a fair trial, the court is under no obligation to

give the charge, absent a request”); State v. Ganster, 102 Ariz. 490, 495 (1967)

(“generally the failure to give an instruction in the absence of a request for

same is not error”); State v. Baker, 126 Ariz. 531, 532 (App. 1980) (similar);

State v. Corrao, 115 Ariz. 55, 57 (App. 1977) (similar).

¶20 Cases citing Gendron do so for the proposition that, absent

fundamental error, “‘failure to raise an issue at trial . . . waives the right to

raise the issue on appeal.’” State v. Milke, 177 Ariz. 118, 122 (1993) (quoting

Gendron, 168 Ariz. at 154); State v. Lautzenheiser, 180 Ariz. 7, 10 (1994) (same);

State v. Youngblood, 173 Ariz. 502, 504 (1993) (same); State v. Hill, 174 Ariz.

313, 321 (1993) (similar); see also State v. Hyde, 186 Ariz. 252, 278 (1996)

(“Defendant did not object to the instruction at trial. We therefore review

the instruction for fundamental error.”) (citing Gendron); State v. Ramirez,

178 Ariz. 116, 126 (1994) (similar); State v. Romero, 248 Ariz. 601, 606 ¶ 20

(App. 2020) (“the court’s failure to sua sponte give . . . [jury] instruction was

not improper”); accord State v. Gallegos, 178 Ariz. 1, 12 (1994) (Stating,

without citing Gendron, that “a trial judge’s failure to give an instruction sua

sponte provides grounds for reversal only if such failure is fundamental

error.”) (citation omitted).

C. Analysis of the Claimed Duty to Instruct The Jury on

Justification Defenses That Have Not Been Requested.

¶21 Taken together, Avila and Gendron stand for the proposition

that, while the trial court must properly instruct the jury on the elements of

the charged offenses and on reasonable doubt, see Portillo, 182 Ariz. at 596,

there is no sua sponte duty to instruct the jury on justifications that the

defendant does not request. To be sure, no Arizona Supreme Court opinion

says exactly that. But, together, the cases stand for this proposition.

¶22 More broadly, jury instructions given must correctly state the

law. See State v. Lehr, 227 Ariz. 140, 151 ¶ 51 (2011) (citing State v. Kiles, 222

Ariz. 25, 32 ¶ 27 (2009)). This proposition, not a sua sponte duty to instruct

the jury on justification defenses, explains State v. Sulu-Kerr, 256 Ariz. 530

(App. 2024).

¶23 The State asserts Sulu-Kerr held “the trial court fundamentally

erred by not sua sponte instructing the jury on the justification defense of

‘defense of an occupied vehicle.’” Sulu-Kerr affirmed convictions for theft

7

STATE v. BROWN

Opinion of the Court

of means of transportation and leaving the scene of a fatal accident but

vacated and remanded for a new trial the convictions for negligent

homicide and aggravated assault. 256 Ariz. at 543 ¶ 45. Dissatisfied with

that outcome, the State filed a petition asking the Arizona Supreme Court

to review Sulu-Kerr, which currently is pending.

¶24 Sulu-Kerr involved several justification jury instructions

requested by the defendant and given by the superior court. 256 Ariz. at

535-36 ¶¶ 15-19. The opinion turned in large part on a seldom-used

justification (defense of an occupied vehicle, A.R.S. § 13-418) that was

neither requested by the defendant nor given in the jury instructions. Id.

The argument on appeal, however, was not merely that the trial court had

a sua sponte obligation to give the defense of an occupied vehicle

justification instruction given the trial evidence. Instead, the defendant

argued that the various justification jury instructions given incorrectly

stated the law: “Asserting the instructions given ‘left the jury with an

incorrect understanding of justification defenses,’ [the defendant] contends

the omission constituted fundamental, prejudicial error.” Id. at 535 ¶ 15. The

Sulu-Kerr opinion agreed, concluding the prosecutor mischaracterized the

law during closing arguments and, in doing so, “essentially relieved the

State of the burden of proving the defendant acted without justification for

purposes of aggravated assault” and negligent homicide. Id. at 540 ¶ 34.

Noting a jury question evidenced prejudice, Sulu-Kerr concluded the

defendant showed fundamental error resulting in prejudice. Id. at 540-41

¶¶ 35-37. In this way, Sulu-Kerr properly reflects that common-sense notion

that jury instructions given by the court must correctly state the law. Sulu-

Kerr does not, however, reflect a novel view that trial courts have a sua

sponte duty to instruct on all potentially applicable justification defenses.

D. Trial Courts Have No Duty to Instruct The Jury on

Justification Defenses That Have Not Been Requested.

¶25 Justification defenses are one of three mutually exclusive

types of defenses in criminal cases (the other two are affirmative defenses

that attempt to excuse criminal conduct and defenses that deny or negate

an element of the charge or responsibility). See State v. Bayardi, 230 Ariz. 195,

198-99 ¶ 13 (App. 2012). “Justification defenses describe conduct that, if not

justified, would constitute an offense but, if justified, does not constitute

criminal or wrongful conduct.” A.R.S. § 13-205(A). If a justification defense

is properly “presented by the defendant, the state must prove beyond a

reasonable doubt that the defendant did not act with justification.” Id. For

several reasons, trial courts have no sua sponte duty to instruct the jury on

justification defenses that have not been requested.

8

STATE v. BROWN

Opinion of the Court

¶26 First, as discussed above, there is no Arizona case law

imposing such a sua sponte duty. The absence of such authority is

significant, given that justification defenses were added to the Arizona

Criminal Code nearly 50 years ago, 1977 Ariz. Sess. Laws Ch. 142, § 44

(justification; self-defense, effective Oct. 1, 1978), and legislatively clarified

nearly 20 years ago, Carson, 243 Ariz at 466 ¶ 11 (citing A.R.S. § 13–205(A)).

That no case has found a sua sponte duty to instruct the jury on justification

defenses during that extended period is a strong indicator that there is no

such duty and that there should be no such duty.

¶27 Second, Brown has not shown how it would be practical to

impose a sua sponte duty upon trial courts to instruct the jury on all

potentially applicable justification defenses, as opposed to requiring

defendants to request such instructions. Currently, there are nearly 20

justification defenses addressing a wide variety of circumstances.2 Under

Brown’s view, after both parties rested in presenting evidence, the trial

court would need to sift through the evidence to determine which of these

disparate justification defenses had to be included in final jury instructions.

The trial court then would then need to determine if the State could offer

additional evidence addressing the justification defenses the court found

applicable, given that the State “must prove beyond a reasonable doubt that

the defendant did not act with justification.” A.R.S. § 13-205(A). Such a

profound and significant change in the adversarial system is not supported

by statute or case law and would be contrary to longstanding procedural

requirements. See Ariz. R. Crim. P. 15.2 (b)(1) (requiring pretrial disclosure

of “all defenses the defendant intends to assert at trial, including, but not

limited to, . . . self-defense, defense of others . . .”); Ariz. R. Crim P. 21.3(b)

(requiring timely objections “to the court’s giving or failing to give any

2 See A.R.S. § 13-402 (“Justification; execution of public duty”); -403

(“Justification; use of physical force”); -404 (“Justification; self-defense”); -

405 (“Justification; use of deadly physical force”); -406 (“Justification;

defense of a third person”); -407 (“Justification; use of physical force in

defense of premises”); -408 (“Justification; use of physical force in defense

of property”); -409 (“Justification; use of physical force in law

enforcement”); -410 (“Justification; use of deadly physical force in law

enforcement”); -411 (“Justification; use of force in crime prevention;

applicability”); -412 (“Duress”); -414 (“Justification; use of reasonable and

necessary means”); -415 (“Justification; domestic violence”); -416

(“Justification; use of reasonable and necessary means; definition”); -417

(“Necessity defense”); -418 (“Justification; use of force in defense of

residential structure or occupied vehicles; definitions”); -421 (“Justification;

defensive display of a firearm; definition”).

9

STATE v. BROWN

Opinion of the Court

[jury] instructions;” “If a party does not make a proper objection, appellate

review may be limited.”).

¶28 Third, what justification defenses (if any) a criminal defendant

may wish to press fairly is a question of trial strategy. The facts of this case

prove the point. Brown’s attorney did not argue self-defense and

disavowed any reliance on self-defense. In considering similar facts,

Gendron noted the strategic nature of justification defenses: “For all we

know, defendant might have objected had the trial court done what the

appeals court now says it was required to do” (sua sponte provide a

justification instruction). 168 Ariz. at 154.

¶29 Finally, and relatedly, Brown offers no answer to whether a

trial court, if a sua sponte duty to instruct on justification defenses was to

be imposed, could do so over a defendant’s objection. Looking to lesser

included offense instructions as a proxy, the Arizona Supreme Court has

cautioned that a “trial court should be loath” to give such an instruction

over objection “absent compelling circumstances to the contrary.” State v.

Gipson, 229 Ariz. 484, 487 ¶ 17 (2012). That caution would be even more

acute for instructing the jury on justification defenses that a defendant has

not invoked.

¶30 Trial courts have no duty to instruct the jury on justification

defenses that have not been requested. On this record, Brown has failed to

show error by the superior court failing, sua sponte, to instruct the jury on

self-defense. As a result, he has failed to show fundamental error resulting

in prejudice. See Escalante, 245 Ariz. at 142 ¶ 21; James, 231 Ariz. at 493 ¶ 11.3

CONCLUSION

¶31 Because Brown has shown no error, his convictions and

resulting sentences are affirmed.

3 For these same reasons, Brown has failed to show (as he argues) that he

was denied due process rights to present a full defense. To the extent Brown

seeks to assert ineffective counsel, such a challenge must be raised in a

separate proceeding. See Ariz. R. Crim. P. 32.

10

STATE v. BROWN

Brown, J., specially concurring

B R O W N, Judge, specially concurring:

¶1 I concur in the result. I write separately to briefly explain my

view on what makes this case significantly different from Sulu-Kerr and

why in some circumstances a trial judge may be required to take

appropriate steps to ensure the jury is properly informed of the State’s

burden of proof in this unique area of the law.

¶2 As explained by our supreme court, “[i]n 2006, the legislature

amended Arizona’s statutes to declare that actions taken in self-defense

transform conduct that would otherwise be criminal into legally

permissible conduct.” Carson, 243 Ariz. at 466, ¶ 11 (citing A.R.S.

§ 13-205(A) (stating that “[j]ustification defenses . . . are not affirmative

defenses”) and § 13-103(B) (describing an “affirmative defense” as a defense

that “excuse[s]” criminal conduct and stating that such defenses do not

include justification defenses)). The legislature mandated that if a

defendant presents evidence of a justification defense, “the state must prove

beyond a reasonable doubt that the defendant did not act with justification.”

A.R.S. § 13-205(A) (emphasis added). In Carson, the supreme court further

explained that “[o]nce a defendant identifies evidence [supporting a

self-defense instruction], the absence of self-defense becomes an additional

element the state must prove to convict.” Carson, 243 Ariz. at 466, ¶ 11

(emphasis added).

¶3 Thus, when at least one justification defense is properly

invoked and supporting evidence has been presented at trial, the jury

instructions need to accurately inform the jurors precisely what defenses

are at issue based on the evidence. State v. Rix, 256 Ariz. 125, 137, ¶ 38 (App.

2023) (“The sole purpose of jury instructions is to correctly inform jurors of

the applicable law.”); State v. Mendoza, 234 Ariz. 259, 262, ¶ 15 (App. 2014)

(“Jury instructions must ‘adequately set forth the law applicable to the

case.’”). The instructions are essential, and must be complete, because they

form the basis for the jury to decide whether the State has met its burden of

proving, beyond a reasonable doubt, the absence of all pertinent

justification defenses, which effectively makes the State responsible for

proving an “additional element” of the crime. See Carson, 243 Ariz. at 466,

¶ 11; Sulu-Kerr, 256 Ariz. at 538–39, ¶ 27 (“Simply put, without an

instruction on the defense of an occupied vehicle justification, the

instructions given failed to inform the jury of the law vital to its proper

consideration of the evidence.”); see also State v. Ewer, 254 Ariz. 326, 329,

¶ 11 (2023) (“[A] jury instruction is improper if it misleads the jury.”).

11

STATE v. BROWN

Brown, J., specially concurring

¶4 Unlike the present case, the defendant in Sulu-Kerr did

present justification defenses. Sulu-Kerr, 256 Ariz. at 535, ¶ 16. However,

the jury instructions given did not accurately inform jurors that the State

needed to prove the absence of an applicable justification defense—defense

of an occupied vehicle—under A.R.S. § 13-418. Id. at 536–37, ¶ 23. Defense

of an occupied vehicle was substantively different from the other

self-defense instructions the jury was given, which meant that the trial court

failed to correctly describe what the State needed to prove to show the

defendant’s acts were not justified. Id. at 538, ¶ 25. Thus, the defendant in

Sulu-Kerr was effectively denied a right essential to her defense. Cf. State v.

Kemper, 229 Ariz. 105, 107, ¶ 5–6 (App. 2011) (noting that instructions which

“improperly relieved the State of its burden of proving an element of the

offense” constituted fundamental error). But here, no such denial occurred

because Brown never presented a justification defense and thus the State’s

burden to prove the absence of justification was not triggered.

¶5 If justification instructions given to a jury improperly relieve

the State of its burden of proving beyond a reasonable doubt, which is

essentially what occurred in Sulu-Kerr, that does not necessarily mean

reversible error has occurred. Instead, in pressing such an argument on

appeal the defendant carries the heavy burden of establishing fundamental

error that results in prejudice. See Escalante, 245 Ariz. at 144, ¶ 31

(explaining that the standard for prejudice is not easily satisfied); see also

State v. Fierro, 254 Ariz. 35, 42, ¶ 24 (2022) (“[I]t is the rare case in which an

improper instruction will justify reversal of a criminal conviction when no

objection has been made in the trial court” (quotation omitted)). Applying

that principle here, Brown has failed to establish that any error occurred,

much less fundamental error, because he never presented a justification

defense at trial.

¶6 To avoid issues relating to the completeness of jury

instructions when justification defenses have been properly presented

during trial by the defendant, trial judges should be cognizant of the

potential need to question trial counsel about which instructions will

properly guide the jury and hold the State to its burden of proof on the

justification defenses that are supported by the evidence. And trial counsel

must recognize the critical role they play in evaluating the evidence and

requesting pertinent instructions that will assist the court with its obligation

to instruct the jury appropriately on justification defenses. See Ariz. R. Crim

P. 21.2 (requiring that no later than the close of evidence, the parties must

“submit to the court written requests for instructions”). When counsel falls

short in that role, it undermines the judicial process by causing unnecessary

delay and uncertainty.

12

STATE v. BROWN

Brown, J., specially concurring

¶7 For these reasons, I agree with affirming Brown’s convictions

and sentences.

AMY M. WOOD • Clerk of the Court

FILED: AGFV

13