State v. Peterson

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JUSTIN KIETH PETERSON, Appellant.

No. 1 CA-CR 24-0024
FILED 04-29-2025

Appeal from the Superior Court in Maricopa County
No. CR2021-137345-001
The Honorable Justin Beresky, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Celeste Kinney
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
 STATE v. PETERSON
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MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which
Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.

W I L L I A M S, Judge:

¶1 Defendant Justin Kieth Peterson appeals his convictions and
sentences for second-degree murder. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 At a quarter to midnight on a fall evening in 2021, Will1
arrived at the home of his friend, Whitney. As he parked and stepped out
of his vehicle, Will observed Peterson, a man he did not know, across the
street, yelling and swearing. Feeling verbally accosted, Will went inside the
house and told Whitney, her roommate, Veronica, and Veronica’s
boyfriend, Vince, about Peterson’s tirade.

¶3 Initially, Whitney ventured outside alone to face Peterson, but
once she determined he was yelling for Veronica, she quickly returned to
the house and waited for Vince to “confront the situation.” Despite Whitney
urging him to fight, Vince did not hit or push Peterson but ordered him to
leave. As Peterson began walking away, Veronica emerged from the house,
crossed the street, and had a terse exchange with Peterson. Veronica and
Vince then trailed behind as Peterson walked away.

¶4 When he reached his home—a few houses down—Peterson
retrieved an “AK-47 style” semiautomatic firearm from his bedroom.
Moments later, he went outside, headed back toward Veronica and Vince,
and discovered his wife, Pam, engaged in a physical struggle with
Veronica. Peterson fired 33 rounds, repeatedly striking Veronica and Vince,
killing them both.

¶5 Leaving the bodies in the street, Peterson and Pam walked
home, where she called 9-1-1. While speaking with a 9-1-1 operator, Pam,
though quite distraught, recounted that her neighbors had hit her and
“pulled a revolver” on both her and Peterson. When the operator asked for
the location of the unidentified neighbors, Pam responded that they were
outside and then, while looking out to the street, reported that she saw

1 We use pseudonyms to protect the victim’s and witnesses’ identities.

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other unnamed neighbors taking the revolver that had been used to
threaten her.

¶6 When police officers arrived at the scene, they placed
Peterson under arrest. After taking Peterson into custody, officers
canvassed the neighborhood and obtained surveillance videos recorded at
neighboring homes.

¶7 Meanwhile, Peterson told the officers transporting him to a
police station that Veronica and Vince had pointed a revolver at both him
and Pam. Other officers interviewed Will and Whitney. During his initial
conversations with police officers, Will did not disclose any information
about the revolver. But when he overheard officers questioning Whitney
about a missing gun, Will volunteered that he had taken the revolver from
the scene—where it had been laying near the bodies—and placed it under
Whitney’s mattress. Once officers secured a search warrant, they recovered
the revolver from Whitney’s bedroom and later determined that it belonged
to Veronica’s father.

¶8 The State charged Peterson with two counts of second-degree
murder. The State also alleged several aggravating factors.

¶9 After a twenty-two-day trial, a jury convicted Peterson as
charged. The jurors also found four aggravating factors—physical,
emotional or financial harm to the victims or their immediate family,
multiple victims in a single incident, the opportunity to walk away from a
confrontation, and the need to protect future victims from Peterson—as to
each count.

¶10 At sentencing, the trial court imposed presumptive,
concurrent terms of sixteen years’ imprisonment for each count. Peterson
timely appealed, and we have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. Sufficiency of the Evidence

¶11 Peterson challenges the trial court’s rulings denying his
motion for judgment of acquittal following the State’s presentation of its
case-in-chief and his renewed motion for judgment of acquittal after the
jury rendered its verdicts. He contends the State failed to disprove his
justification defenses.

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¶12 We review de novo a trial court’s ruling on a motion pursuant
to Arizona Rule of Criminal Procedure (“Rule”) 20, whether at trial or post-
verdict. State v. West, 226 Ariz. 559, 562–63, ¶¶ 15, 19 (2011). “[T]he relevant
question is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 562, ¶ 16 (internal
quotation marks omitted). In reviewing the sufficiency of the evidence, we
test the evidence “against the statutorily required elements of the offense,”
State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App. 2005), and neither reweigh
conflicting evidence nor assess the credibility of witnesses, see State v.
Buccheri-Bianca, 233 Ariz. 324, 334, ¶ 38 (App. 2013). Sufficient evidence
upon which a reasonable jury can convict may be direct or circumstantial,
West, 226 Ariz. at 562, ¶ 16, and a judgment of acquittal is appropriate only
when “there is no substantial evidence to support a conviction,” Ariz. R.
Crim. P. 20(a)(1), (b)(1).

¶13 As charged in this case, a person commits second-degree
murder by, without premeditation: (1) intentionally causing another
person’s death; (2) engaging in conduct while knowing that the conduct
will cause death or serious physical injury, and causing the death of another
person; or (3) recklessly engaging in conduct that creates a grave risk of
death and thereby causing the death of another person. A.R.S.
§ 13-1104(A)(1)–(3).

¶14 At trial, Peterson did not contest that he repeatedly shot and
killed Veronica and Vince, knowing that his conduct would cause them
serious physical injury or death. Instead, he asserted justification defenses,
contending he had to use lethal force to protect himself and Pam from
serious bodily harm or death.

¶15 The State presented evidence of Pam’s interview with
detectives shortly after Peterson’s arrest. In response to questioning, Pam
stated that she met Veronica six weeks before the shooting, when Veronica
saw her injured on a greenbelt in their neighborhood and offered help.
After their initial meeting, Pam tried to befriend Veronica and visited with
her “a few times.” According to Pam, during these occasions, Veronica
removed her clothing without her consent and coerced her to use drugs.
After Pam recounted these interactions to Peterson, characterizing them as
“assault,” he stationed himself across the street from Veronica’s home (both
on the evening of the shooting and a prior evening) so he could “talk” to
her and ask her to “leave [Pam] alone.” On the evening of the shooting, in
an attempt to persuade him to come home, Pam walked down to Peterson’s
location, spoke with him briefly, and then returned home, alone, to check

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on their children. Moments later, Pam heard shouting and went outside “to
see what was going on.” As she walked out, Peterson ran past her into their
house. Although he said nothing, Pam “could tell something was not right.”
She then saw Veronica and Vince walking up the sidewalk toward her
home and went out to meet them. Pam explained that when they met in
front of another neighbor’s house, Veronica “pulled a revolver out.”
Instinctively, Pam grabbed the revolver and wrestled it away from
Veronica, but Vince then wrangled the revolver from her. While Vince
pointed the revolver at Pam and Veronica hit her, Peterson approached and
opened fire. During their walk back home, Peterson told Pam that Veronica
had threatened him with a gun near her house and begun following him
home, leading him to arm himself.

¶16 During her trial testimony, Pam restated much of the
information she initially told detectives concerning her interactions with
Veronica. Her trial account of the evening of the shooting, however,
departed from her interview statements in some material respects: (1) she
was in her backyard, not in front of her house, when Peterson returned
home, (2) she barely caught a glimpse of him before he turned down a
hallway, but she “could tell something was wrong” based on the speed with
which he entered the house and his frantic “energy,” (3) she noticed that he
had not shut the front door, which prompted her to go outside and walk
out to meet Veronica and Vince, (4) when Veronica pulled out a revolver
and pointed it at her chest, she grabbed the barrel of the gun and then all
three of them began wrestling for it, (5) she “blacked out,” and when she
regained consciousness, she was kneeling on the ground with Veronica and
Vince standing to her right and left and one of them holding the revolver to
her head, and (6) someone fired the revolver, causing her to temporarily
lose her hearing and become disoriented, only seeing flashes of light before
Peterson approached her and they walked home.

¶17 To explain the inconsistencies in her statements, Pam testified
she had been in shock during her police interview. She also asserted the
interviewing detectives had misunderstood her and put “words in [her]
mouth.”

¶18 When asked about his interview with Pam, the lead detective
testified she never reported “blacking out” or being held on her knees at
gunpoint. He also stated Pam never claimed that someone fired the
revolver, causing her to become temporarily deaf. Despite these
discrepancies, the detective stated he always believed Pam had been
threatened with a revolver. The detective also testified that other 9-1-1

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callers had reported that Pam and Peterson “had been threatened,” but he
did not identify the nature of those reported threats.

¶19 Several neighbors also testified. One neighbor recounted that
around 11:45 p.m., he looked outside his window to investigate some noises
and saw two women standing on the sidewalk in front of his property,
facing each other. He recognized Pam as one of the women but did not
recognize the other woman. Soon, an unfamiliar man joined them, and the
women began a physical altercation. Moments later, the neighbor observed
Peterson, whom he identified by both appearance and voice, running
toward the others while yelling, “you can’t do that to my wife.” After the
yell, the neighbor heard a flurry of shots fired and saw Peterson holding a
weapon. As Peterson fired, Pam backed away from the sidewalk, onto
nearby rocks. When Peterson stopped shooting, the neighbor heard Pam
say, “you didn’t have to kill them.” Another neighbor testified that while
he was watching television on the night of the shooting, he heard “people
fighting” outside. As the sounds became louder, he opened his front door
and heard two women and one man yelling. He then heard an unidentified
male voice say, “this is what I was waiting for,” immediately followed by
gunfire.

¶20 Before the State rested, each side called an audio forensics
expert to analyze the audio file from a surveillance camera recording. The
defense expert opined that the first gunshot had a distinctly lower
frequency than the rest of the shots, demonstrating that two guns were
discharged. By contrast, the State’s sound expert concluded that the “shots
could all be from a single gun that was moving or being pointed in different
directions,” but he could not “rule out the possibility that there w[as] more
than one gun involved.”

¶21 After the State presented its case-in-chief, Peterson moved for
judgment of acquittal. The trial court denied his Rule 20 motion, noting that
despite the “conflicting evidence about who may have had the gun at the
time [] Peterson fired shots,” either Veronica or Vince, alone, held the
revolver when Peterson shot them, yet he targeted them both.

¶22 Following the trial court’s ruling, defense counsel called the
lead detective back to the stand. While reviewing surveillance footage
capturing Veronica’s approach of and interaction with Peterson outside her
home, the detective acknowledged that a shadow near Veronica’s hand
could be, among other things, a revolver, but he explained that the quality
of the imaging prevented any clear determination. He conceded, however,
that the surveillance footage demonstrated that Veronica never returned

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home, so she necessarily had the revolver in her possession when she
approached Peterson.

¶23 Lastly, Peterson testified in his own defense. He stated that on
the evening of the shooting, he “was minding [his] own business” when
Vince approached him and said, “[y]ou can’t be over here,” to which he
responded, “[t]hat’s fine. I’ll leave.” He admitted that as he began walking
away, he shouted, “[t]hanks for molesting my wife, [expletive expletive]”
to Veronica. At that point, Veronica pulled out a gun and pointed it at his
chest, prompting him to turn and run home. Although he intended to lock
his front door, secure his family, call the police, and then arm himself,
Peterson admitted that he instead “flung” open his front door, “ran down
the hallway,” and retrieved a loaded gun from his bedroom closet. Once
armed, he quickly looked for Pam but could not find her and then heard
female voices outside the front of his house. When he followed the voices
outside, he saw Veronica hitting Pam in the face with her left hand while
holding a gun pointed at Pam with her right hand. Peterson testified that
he could not recall whether Pam was on her knees and stated that he never
heard a gunshot from the revolver before shooting Veronica. According to
Peterson, after he repeatedly shot Veronica, Vince “got ahold of the gun”
and pointed it directly at him, so he shot Vince as well. Although Peterson
recounted that the revolver switched hands, he expressly denied that
Veronica had ever dropped the weapon. In response to jurors’ questions,
Peterson testified that: (1) Pam evaded the spray of bullets because “[s]he
was back several feet” and he “was [] very cautious not to shoot [his] wife,”
and (2) he took the safety off his weapon in the hallway, before he heard
any screaming outside.

¶24 “Justification is not an affirmative defense that the defendant
must prove.” State v. King, 225 Ariz. 87, 89, ¶ 6 (2010). Rather, because
“actions taken in self-defense [or the defense of a third person] transform
conduct that would otherwise be criminal into legally permissible
conduct,” State v. Carson, 243 Ariz. 463, 466, ¶ 11 (2018), when a defendant
presents any evidence of self-defense or the defense of a third person, the
State must prove “beyond a reasonable doubt that the defendant did not
act with justification,” King, 225 Ariz. at 89, ¶ 6 (quoting A.R.S. § 13-205(A)).

¶25 To meet its evidentiary burden and disprove Peterson’s
justification defenses, the State had to establish that no reasonable person
would have believed that the use of deadly physical force was immediately
necessary to protect Peterson and/or Pam from Veronica’s and Vince’s
threatened use of deadly physical force. See A.R.S. § 13-404(A) (“[A] person
is justified in threatening or using physical force against another when and

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to the extent a reasonable person would believe that physical force is
immediately necessary to protect himself against the other’s use or
attempted use of unlawful physical force.”); A.R.S. § 13-405(A) (“A person
is justified in threatening or using deadly physical force against another:
1. If such person would be justified in threatening or using physical force
against the other under § 13-404, and 2. When and to the degree a
reasonable person would believe that deadly physical force is immediately
necessary to protect himself against the other’s use or attempted use of
unlawful deadly physical force.”); A.R.S. § 13-406 (“A person is justified in
threatening or using physical force or deadly physical force against another
to protect a third person if, under the circumstances as a reasonable person
would believe them to be, such a person would be justified under § 13-404
or 13-405 in threatening or using physical force or deadly physical force to
protect himself against the unlawful physical force or deadly physical force
a reasonable person would believe is threatening the third person he seeks
to protect.”).

¶26 Although the surveillance videos captured a terse exchange
between Veronica and Peterson in front of Veronica’s home, they neither
confirmed nor disproved that Veronica or Vince threatened either Pam or
Peterson with a revolver. Likewise, no neighbors testified that they saw
Veronica or Vince display a weapon. In fact, Pam and Peterson provided
the only evidence that such threats occurred, and their accounts were not
only inconsistent with each other, but Pam’s trial testimony contravened
her prior statements to detectives.

¶27 Given these inconsistencies and discrepancies, reasonable
jurors could have found Pam’s interview statements—made immediately
following the underlying events—more credible. Indeed, reasonable jurors
could have found several aspects of Pam’s and Peterson’s trial accounts
simply implausible, including testimony that: (1) Veronica and Vince stood
beside Pam—with one of them holding a gun to her head—when Peterson
sprayed them with bullets, yet Pam suffered no bullet injuries; (2) Veronica
simultaneously pointed a gun at Pam with her left hand while slapping
Pam with her right hand, yet Pam stood “several feet” away from her and
out of the line of fire when Peterson shot her; and (3) during the nine
seconds of gunfire, Vince managed to gain control of the revolver that
Veronica had been pointing at Pam when the shooting began—though
Veronica did not drop it—and promptly pointed it at Peterson. Reasonable
jurors also could have dismissed Peterson’s trial testimony that he returned
to his house with the intent to secure his family and home, contact the
police, and then arm himself in the event Veronica and Vince reached his
home before police arrived. Both Pam’s interview statement—that Peterson

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ran past her into the house without warning her of any impending
danger—and Peterson’s trial admissions—that he did not shut and lock his
front door, check on his children, or call the police—belied this claimed
intent. In fact, consistent with the aggravation verdict finding that Peterson
could have “walk[ed] away from a confrontation,” reasonable jurors could
have concluded that Peterson returned to his home with the intent to arm
himself with a powerful weapon and then return to the street to confront
Veronica and Vince.

¶28 In sum, viewed in its entirety, substantial evidence existed
from which a reasonable jury could find that Peterson, at a minimum,
recklessly engaged in conduct that created a grave risk of death, thereby
killing Veronica and Vince, and that he did so without justification.
Therefore, the trial court did not err by denying Peterson’s motion for
judgment of acquittal and renewed motion for judgment of acquittal.

II. Adequacy of the Jury Instructions

A. “Lesser-Included Offense”

¶29 Peterson argues the trial court erred by failing to instruct sua
sponte the jury on what he characterizes as the “lesser included offense” of
provocation manslaughter. He contends “overwhelming evidence”
established that he shot Veronica and Vince “upon a sudden quarrel or heat
of passion resulting from adequate provocation.”

¶30 Because Peterson failed to object to the instructions given and
did not request a provocation-manslaughter instruction, we review his
appellate challenge only for fundamental, prejudicial error. State v.
Escalante, 245 Ariz. 135, 140, ¶ 12 (2018); see also Ariz. R. Crim. P. 21.3(b)
(“Any objection to the court’s giving or failing to give any instruction . . .
must be made before the jury retires to consider its verdict. . . . If a party
does not make a proper objection, appellate review may be limited.”); State
v. Gallegos, 178 Ariz. 1, 12 (1994) (“[A] trial judge’s failure to give an
instruction sua sponte provides grounds for reversal only if such failure is
fundamental error.”).

¶31 “A lesser-included offense is one ‘composed solely of some
but not all of the elements of the greater crime so that it is impossible to
have committed the crime charged without having committed the lesser
one.’” State v. Lua, 237 Ariz. 301, 303, ¶ 7 (2015) (quoting State v. Celaya, 135
Ariz. 248, 251 (1983)). Applying the “elements test,” provocation
manslaughter encompasses all the elements of second-degree murder but
adds the “mitigating ‘circumstance’ of adequate provocation.“ Id. Thus,

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“provocation manslaughter is not a lesser-included offense of second-
degree murder” but “a lesser degree of homicide.” Id. (citing A.R.S.
§§ 13-1101(2), -1103(C), -1104(C)).

¶32 Our supreme court has long “approved provocation-
manslaughter instructions in first- and second-degree murder trials when
supported by the evidence.” Id. at 305, ¶ 14. In some of these cases, the
supreme court issued broad pronouncements that manslaughter
instructions “are required when supported by the evidence,” State v.
Delahanty, 226 Ariz. 502, 507, ¶ 23 (2011), and “[a]n accused murderer is
entitled to an instruction on . . . manslaughter if the evidence shows the
killing was done in the heat of passion,” State v. Noleen, 142 Ariz. 101, 107
(1984), but Peterson has not cited, and our research has not revealed, any
case finding a superior court committed fundamental, prejudicial error by
failing to instruct sua sponte a jury on provocation manslaughter.

¶33 Moreover, borrowing the analytic framework applied to
lesser-included offenses, in non-capital cases, the trial court is not required
to instruct sua sponte on every lesser offense supported by the record. State
v. Gipson, 229 Ariz. 484, 486, ¶ 13 (2012). Instead, the court has a duty to
provide such an instruction only when its omission “would fundamentally
violate [the] defendant’s right to a fair trial” and interfere with the
“defendant’s ability to conduct his defense.” State v. Vince, 146 Ariz. 597,
604 (1985), overruled in part on other grounds by State v. Ives, 187 Ariz. 102,
106–08 (1996). Indeed, trial judges should “exercise restraint in instructing
sua sponte” on lesser offenses, and, in general, “should withhold charging
on” lesser offenses “unless one of the parties requests it” because the issue
is “best resolved . . . by permitting counsel to decide on tactics.” Gipson, 229
Ariz. at 487, ¶¶ 15–16 (internal quotation marks omitted); see also State v.
Vanderlinden, 111 Ariz. 378, 379–80 (1975) (explaining that when a
defendant assesses the evidence presented by the State and concludes it is
insufficient “to secure a conviction of the greater crime,” the decision to
forego jury instructions on lesser-included offenses may not constitute
strategic error but a viable strategy to “secure a complete acquittal”); State
v. Krone, 182 Ariz. 319, 323 (1995) (explaining “there may well be cases in
which the defendant will be confident enough that the State has not [proven
the greater offense] that he will want to [forego lesser-included offense
instructions and] take his chances with the jury”) (internal quotation marks
omitted).

¶34 In this case, Peterson predicated his entire defense on
justification. During the settling of the final jury instructions, defense
counsel requested self-defense and defense of third-party instructions. The

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trial court stated it would provide the defense of third-party instruction and
then asked whether counsel would present an “all or nothing” defense or
“ask[] for a lesser.” In response, defense counsel declined any lesser offense
instruction and reiterated his request for a self-defense instruction. Later,
the court again inquired whether defense counsel requested a lesser offense
instruction, and defense counsel again declined any additional instructions.

¶35 Given Peterson’s defense strategy, the trial court’s failure to
instruct sua sponte the jury on provocation manslaughter did not interfere
with his right to present his defense. See Krone, 182 Ariz. at 323 (“A
defendant should not have a lesser included instruction forced upon him.”).
Simply put, a provocation-manslaughter instruction was wholly
inconsistent with the defense theory of the case. Therefore, the trial court
did not err by failing to instruct sua sponte the jury on provocation
manslaughter.

B. Alternative Justification Instruction

¶36 Peterson argues the trial court erred by failing to instruct sua
sponte the jury on the use of force in crime prevention. Although the court
instructed the jury on self-defense and the defense of a third party, he
contends he was prejudiced by the omission of a use of force in crime
prevention instruction because the jurors were not told that he had no duty
to retreat and was presumed to have acted reasonably. See A.R.S.
§ 13-411(A)–(C).

¶37 Because Peterson failed to object to the instructions given and
did not request a use of force in crime prevention instruction, we review his
appellate challenge only for fundamental, prejudicial error. Escalante, 245
Ariz. at 140, ¶ 12. “[T]rial courts have no sua sponte duty to instruct the jury
on justification defenses that have not been requested.” State v. Brown,
___ Ariz. ___, ___, ¶ 25, 556 P.3d 776, 782 (App. 2024). Therefore, Peterson
“has failed to show error by the [trial] court failing, sua sponte, to instruct
the jury” on the use of force in crime prevention. Id. at ¶ 30.

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CONCLUSION

¶38 We affirm the convictions and sentences.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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