State v. Johnson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

KION ELIJAH Z. JOHNSON, Appellant.

No. 1 CA-CR 24-0125
FILED 04-22-2025

Appeal from the Superior Court in Maricopa County
No. CR2021-141692-001
The Honorable Joseph S. Kiefer, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Madeline Shupe
Counsel for Appellee

The Susser Law Firm, PLLC, Chandler
By Adam M. Susser
Counsel for Appellant
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MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael S. Catlett and Judge David D. Weinzweig joined.

K I L E Y, Judge:

¶1 Kion Johnson appeals his convictions for disorderly conduct
and other offenses, arguing that the superior court erred by not instructing
the jury on the justification defense established by A.R.S. § 13-418. But
Johnson never requested that instruction, and a trial court has no obligation
to instruct the jury on justification defenses sua sponte. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Viewed in the light most favorable to upholding the jury’s
verdicts, see State v. Rios, 255 Ariz. 124, 127, ¶ 2 (App. 2023) (citation
omitted), the evidence shows that one afternoon in November 2021, a
witness called 911 after seeing a motorist driving a black Ford Fusion
“holding” a “handgun” and “pointing it in different directions.” Phoenix
police officers in unmarked police cars began following the Fusion.

¶3 The Fusion turned into the parking lot of an apartment
complex and stopped. As one of the officers testified at trial, a person later
identified as Johnson “[c]ame from the apartments” and “got into the front
passenger’s seat of . . . the Ford Fusion.” The Fusion then drove to another
apartment complex and parked. The driver got out and walked toward the
apartment building; Johnson stayed in the car.

¶4 After a few moments the driver returned, accompanied by
another man. They both got into the Fusion. Before the Fusion pulled away,
three officers, including Officer Skinner, executed a “box-in” maneuver by
driving toward the Fusion and surrounding it with their unmarked police
vehicles. As Skinner, who was driving an unmarked Chrysler Sebring,
drove toward the Fusion, Johnson fired a shot that hit the Sebring’s front
windshield. Skinner heard a “bang, crack kind of noise” and was
“immediately showered with glass shards to [his] face.”

¶5 Upon hearing the gunshot, the officers got out of their
vehicles with guns drawn. They arrested the occupants of the Fusion and
found three handguns in the car, including one under the front passenger

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seat where Johnson had been sitting. Swabs taken from Johnson’s hands
tested positive for gunshot residue.

¶6 The State charged Johnson with aggravated assault with a
deadly weapon in violation of A.R.S. § 13-1203, drive-by shooting in
violation of A.R.S. § 13-1209, and possession of a firearm by a minor in
violation of A.R.S. § 13-3111.

¶7 At trial, the 911 caller, the police officers, and the forensic
scientist who tested the swab obtained from Johnson testified about the
events described above.

¶8 Johnson testified on his own behalf. He testified that he did
not realize, when he was sitting in the Fusion, that the Sebring was a police
vehicle. Instead, he said, he saw “a car coming at [him] full speed” and
feared he “was going to be hurt or worse, killed.” He shot at the Sebring,
Johnson stated, to “stop the car that was coming towards [him].” He denied,
however, that he aimed at the driver. When asked how the bullet could
have stopped the Sebring unless it hit the driver, Johnson admitted, “I don’t
know.”

¶9 Johnson asked that the jury be instructed on the justification
defenses established by A.R.S. §§ 13-405 (justification – use of deadly force),
-406 (justification – defense of a third person), and -411 (justification – use
of force in crime prevention). See also Rev. Ariz. Jury Instr. (“RAJI”) Stand.
Crim. 4.05, 4.06, 4.11 (6th ed. 2022). The court gave all of the justification
instructions that Johnson requested.

¶10 The jury found Johnson guilty of disorderly conduct, a lesser
included offense of aggravated assault, and of possession of a weapon by a
minor, and deadlocked on the drive-by shooting count. Shortly after,
Johnson pled guilty to drive-by shooting. The court sentenced Johnson to
concurrent terms of 2.25 years for disorderly conduct, six years for drive-by
shooting, and one year on the weapons count.

¶11 Johnson timely appealed. This Court has jurisdiction
pursuant to Article 6, Section 9 of the Arizona Constitution, and A.R.S. §§
12–120.21(A)(1), 13-4031, and -4033.

DISCUSSION

¶12 Johnson argues the court erred by not instructing the jury on
the “defense of an occupied vehicle” justification defense established by
A.R.S. § 13-418. He concedes that he never requested such an instruction,

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but asserts that the court’s failure to give the instruction sua sponte amounts
to fundamental error entitling him to a new trial. In response, the State
argues that the court did not err here because a court has no duty to sua
sponte instruct the jury on defenses not requested by the defendant. In any
event, the State argues, no evidence was presented at trial that could
support an instruction under A.R.S. § 13-418.

¶13 “Parties are generally entitled to jury instructions on any
theory reasonably supported by the evidence.” State v. Trinidad, 257 Ariz.
485, __, ¶ 18, 550 P.3d 623, 626 (App. 2024) (cleaned up). “We review de
novo whether a trial court properly instructed the jury, and whether the
jury instructions properly state the law.” State v. Ewer, 254 Ariz. 326, 329, ¶
10 (2023) (cleaned up).

¶14 A claim of error to which no objection was made at trial is
reviewed for fundamental error. See State v. Riley, 248 Ariz. 154, 170, ¶ 24
(2020) (citation omitted). An appellant claiming fundamental error bears
the burden of demonstrating that error occurred, that it was fundamental,
and that he suffered prejudice as a result. Id. Error is fundamental if it “went
to the foundation of the case,” “took from the defendant a right essential to
his defense,” or “was so egregious that [the defendant] could not possibly
have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018).

¶15 Section 13-418 states in part,

[A] person is justified in threatening to use or using physical
force or deadly physical force against another person if the
person reasonably believes himself or another person to be in
imminent peril of death or serious physical injury and the
person against whom the physical force or deadly physical
force is threatened or used was in the process of unlawfully
or forcefully entering, or had unlawfully or forcefully entered,
a[n] . . . occupied vehicle, or had removed or was attempting
to remove another person against the other person’s will from
the . . . occupied vehicle.

A.R.S. § 13-418(A) (emphasis added).

¶16 As Johnson correctly asserts, a trial court has an “obligation
to properly instruct a jury on the law . . . whether the parties request a
specific instruction or not.” See State v. Avila, 147 Ariz. 330, 337 (1985) (“[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

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not requested by the defense.” (citations omitted)). The trial court’s failure
to do so may constitute fundamental error. Id.

¶17 This rule is applied sparingly, however, and for good reason:
it runs counter to the premise of our adversarial system that “the litigants
are responsible for developing arguments and adducing evidence on which
to stake their positions” because “the parties know what is best for them.”
Dynometrics Inc. v. Ariz. Dep’t of Econ. Sec., 257 Ariz. 283, __, ¶ 34, 547 P.3d
1068, 1076 (App. 2024) (cleaned up); see also State v. Walker, 159 Ariz. 506,
510 (App. 1989) (noting that “litigation . . . in a criminal court” involves
“two adversaries and a neutral factfinder not responsible for developing
the record” (citation omitted)). To shift the obligation for identifying
appropriate jury instructions from the parties to the court jeopardizes the
integrity of the court’s role as impartial arbiter of disputes between
contesting parties. See Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“In
our adversary system, in both civil and criminal cases, . . . we follow the
principle of party presentation. That is, we rely on the parties to frame the
issues for decision and assign to courts the role of neutral arbiter of matters
the parties present.”); United States v. Tyson, 653 F.3d 192, 212 (3d Cir.
2011) (“A defendant’s strategy is his own. It is not for the [trial] court to sua
sponte determine which defenses are appropriate under the
circumstances.”).

¶18 In keeping with the “party presentation” principle on which
our adversarial system is based, Arizona courts have consistently held that
a trial court commits no error by failing to give a justification instruction
that no party requested. See, e.g., State v. Blankenship, 99 Ariz. 60, 68
(1965) (rejecting defendants’ claim that “the trial court committed
fundamental error in failing to instruct the jury on its own motion . . . as to
[the defendants’] right to use force to protect their property”; “[T]his court
has repeatedly held that where a defendant desires special instructions, and
has neglected to request same, it constitutes a waiver of any right to such
admonition.” (citations omitted)); State v. Lee, 80 Ariz. 213, 215-16
(1956) (rejecting, as “contrary” to “well settled” law, defendant's argument
that trial court erred by failing “on its own motion to instruct the jury as to
self-defense despite defendant’s failure to request such an instruction”
(citations omitted)); State v. Brown, __ Ariz. __, __, ¶ 30, 556 P.3d 776, 782
(App. 2024) (“Trial courts have no duty to instruct the jury on justification
defenses that have not been requested.”).

¶19 To support his argument, Johnson relies on two cases decided
by this Court last year. See State v. Sulu-Kerr, 256 Ariz. 584 (App. 2024),
depublished by 559 P.3d 637 (Ariz. 2024); State v. Jones, __ Ariz. __, 559 P.3d

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1112 (App. 2024), vacated, CR-24-0286-PR, 2025 WL 711118 (Ariz. Mar. 5,
2025). In each of these two cases, this Court held that the superior court
committed fundamental error by failing to sua sponte instruct the jury on
the justification defense established by A.R.S. § 13-418. After Johnson
submitted his briefing in this appeal, however, the Arizona Supreme Court
vacated Jones and ordered Sulu-Kerr depublished. Neither case, therefore,
bolsters Johnson’s position. See Ariz. R. Sup. Ct. 111(c)(1)(C) (providing that
depublished opinion may not be cited for persuasive value).

¶20 In keeping with Blankenship, Lee, and Brown, we hold that a
trial court has no obligation to give a justification instruction that no party
requested. The court’s failure to instruct the jury sua sponte on the
justification defense established by A.R.S. § 13-418 was not error, much less
fundamental error. And because the court did not err in failing to sua sponte
instruct the jury on justification under A.R.S. § 13-418, we need not address
the State’s alternative argument that the evidence presented at trial did not
warrant such an instruction anyway.

CONCLUSION

¶21 The trial court did not err in failing to sua sponte instruct the
jury on the justification defense established by A.R.S. § 13-418. We affirm.

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

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