State v. Hendricks

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ANTHONY B. HENDRICKS, Appellant.

No. 1 CA-CR 24-0232
FILED 05-13-2025

Appeal from the Superior Court in Maricopa County
No. CR2022-114663-001
The Honorable Suzanne Marie Nicholls, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
 STATE v. HENDRICKS
Opinion of the Court

OPINION

Vice Chief Judge Randall M. Howe delivered the Opinion of the Court, in
which Presiding Judge Brian Y. Furuya and Chief Judge David B. Gass
joined.

H O W E, Judge:

¶1 Anthony Hendricks appeals from his conviction and sentence
for misconduct involving weapons. He argues that the superior court erred
by not instructing the jury on a necessity defense. See A.R.S. § 13-417.

¶2 At trial, Hendricks requested “Defense of Premises” and
“Crime Prevention” instructions, see A.R.S. §§ 13-407, 13-411, but did not
specifically request a necessity defense instruction. We now clarify that a
request for one justification defense instruction does not preserve a
challenge relating to a different justification defense on appeal, which we
therefore review for fundamental error. We affirm because the court need
not sua sponte instruct the jury on a justification defense that has not been
requested. State v. Brown, ___ Ariz. ___, ___ ¶ 30, 556 P.3d 776, 782 (App.
2024).

FACTS AND PROCEDURAL BACKGROUND

¶3 We view the facts “in the light most favorable to upholding
the jury’s verdicts, resolving all reasonable inferences against the
defendant.” State v. Duncan, 257 Ariz. 360, 366 ¶ 2 (App. 2024).

¶4 On the night of April 23, 2022, Hendricks and another man
were loudly arguing outside the ground floor of an apartment complex in
Phoenix. A gun was fired, striking the other man in the leg. The man then
ran up a set of stairs.

¶5 Hendricks, who was holding a gun, walked over to his
apartment on the ground floor, banging on its window and screaming at its
occupants to let him inside. After the occupants would not open the door,
Hendricks broke the window. Hendricks handed the gun to someone in the
apartment through the window.

¶6 Police arriving in response to a shots-fired call searched
Hendricks, finding three bullets in a pocket. Police later patted down

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Opinion of the Court

Hendricks’s teenage stepson, finding a gun in his waistband. Hendricks’s
DNA was found on both the gun and its magazine.

¶7 The State charged Hendricks, who was a prohibited possessor
of firearms, with misconduct involving weapons. Hendricks initially
noticed several defenses, see Ariz. R. Crim. P. 15.2(b), but did not include
justification. Before trial, Hendricks filed a supplemental notice including
justification defenses generally without specifying the type. See A.R.S.
§§ 13-401–421.

¶8 The State moved in limine to preclude any justification
defense. At pretrial argument on the motion, Hendricks argued he wished
specifically to raise a “defense of community.” The court granted the
motion, finding justification is not statutorily permitted for misconduct
involving weapons charges. Before voir dire, Hendricks stated
circumstances might arise permitting “justification and necessity” defenses.
But the court treated his statement as simply noting he would move for
reconsideration of the court’s ruling if the evidence developed at trial so
warranted.

¶9 At the close of evidence, Hendricks moved for
reconsideration of the ruling and requested “additional instructions
regarding justification on those different points” as “indicated in the
e-mails prior to the hearing today.” In those emails, Hendricks made “a
record on my requesting a (Statutory) justification instruction for ‘Defense
of Premises’, and ‘Crime Prevention’.” Hendricks conceded that he
understood the law did not permit a justification defense for misconduct
involving weapons, but he argued that “it would be in the interest of justice
were the law to start to allow justification and necessity defenses in a
misconduct involving weapons case.” The court denied the motion, finding
persuasive the reasoning of a depublished case that justification defenses
are not permitted for misconduct involving weapons charges.

¶10 At trial, a witness from the apartment adjacent to Hendricks’s
testified that he (1) heard Hendricks arguing with the victim, (2) heard a
gunshot, (3) saw the victim run upstairs, and (4) saw Hendricks bang on his
window, break it, and hand a gun to an occupant inside. Hendricks testified
that the argument was between the victim and his stepson and that he took
possession of the gun only after the shot was fired. He further testified that
he told police he possessed the gun to protect his teenage stepson from
trouble.

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Opinion of the Court

¶11 A jury convicted Hendricks of misconduct involving
weapons, and he timely appealed. We have jurisdiction. Ariz. Const. art. 6,
§ 9; A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A).

DISCUSSION

¶12 Hendricks argues that the trial court abused its discretion by
not providing a necessity instruction under A.R.S. § 13-417(A). Our
standard of review depends on whether Hendricks requested a necessity
instruction at trial, thereby preserving the challenge, which we now
address.

I. Preservation on Appeal of Necessity Defense Challenge.

¶13 The State contends that although “Hendricks argued that
‘justification and necessity defenses’ should be available in a weapons
misconduct case as a general principle,” he never specifically requested a
necessity instruction. Thus, it argues fundamental error review applies.
Hendricks responds that he preserved the issue because “[c]ounsel
repeated that ‘necessity justification’ should apply in the circumstances of
this case and later argued that it would be in the interest of justice to permit
an instruction on ‘justification and necessity’ in a misconduct involving
weapons case.”

¶14 On appeal, to preserve a challenge to the omission of a
justification defense instruction, the defendant must specifically request
that instruction at trial because justification instructions are a choice of core
trial strategy. See Brown, 556 P.3d at 782 ¶ 28 (“[W]hat justification defenses
(if any) a criminal defendant may wish to press fairly is a question of trial
strategy.”). “Currently, there are nearly 20 justification defenses addressing
a wide variety of circumstances.” Id. at 782 ¶ 27; see A.R.S. §§ 13-401–21.
These 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). Thus, “an affirmative defense is a matter of avoidance
of culpability even if the State proves the offense beyond a reasonable
doubt.” State v. Farley, 199 Ariz. 542, 544 ¶ 11 (App. 2001).

¶15 In other words, by requesting a justification defense
instruction, the defendant argues that even if he committed the alleged act,
he is not criminally liable because he was justified in committing the act. See
Patterson v. New York, 432 U.S. 197, 206–07 (1977) (An affirmative defense
“does not serve to negative any facts of the crime which the State is to prove
in order to convict . . . .”). But a defendant cannot simply claim his conduct
was justified without more; the law distinguishes each defense from one

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Opinion of the Court

another, see A.R.S. §§ 13-401–21; Ariz. R. Crim. P. 15.2(b)(1), and conduct
justified under one defense may not be justified under another. Thus, the
defendant must explain how his conduct was justified under the specific
claimed justification defense. “‘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).” Brown, 556
P.3d at 782 ¶ 28 (quoting State v. Gendron, 168 Ariz. 153, 154 (1991)).

¶16 Without a specific request from counsel, the court need not
“determine which of these disparate justification defenses ha[s] to be
included in final jury instructions.” Id. at 782 ¶ 27. If the defendant could
preserve a challenge to the omission of all justification defense instructions
by raising any justification defense at trial, in effect we would allow the
defendant to invite trial error and profit from it on appeal. See State v. Lucero, 223 Ariz. 129, 135 ¶ 17 (App. 2009). Thus, raising one justification defense
does not preserve a challenge relating to a different justification defense on
appeal. See Brown, 556 P.3d at 782 ¶ 30 (“Trial courts have no duty to
instruct the jury on justification defenses that have not been requested.”);
State v. Vassell, 238 Ariz. 281, 290 ¶ 40 (App. 2015) (Eckerstrom, J., specially
concurring) (Defendant’s request for a “‘justification instruction’ attempted
to foist upon the trial court the dual tasks of selecting among the various
justification statutes in chapter 4 of title 13 and drafting an accurate jury
instruction.”); Ariz. R. Crim. P. 15.2(b)(1) (requiring pretrial disclosure of
“all defenses the defendant intends to assert at trial” and distinguishing
between different defenses, including justification defenses).

¶17 During the three discussions about justification defenses,
Hendricks never requested a necessity instruction. When the court first
heard oral argument on the State’s motion in limine, Hendricks stated only
that “defense of community” was relevant to the misconduct involving
weapons charge. Then, when counsel made a record before voir dire on
“justification and necessity” defenses, he confirmed he was not challenging
the court’s ruling at that time because “this may or may not be one of those
circumstances” where the defense is allowed. Instead, he would move for
reconsideration “when and if it [became] appropriate.”

¶18 When that time came, Hendricks specifically requested
justification instructions as “indicated in the e-mails prior to the hearing
today.” And in those emails, Hendricks requested only “Defense of
Premises” and “Crime Prevention” instructions. Significantly, the emails
make no mention of necessity. Thus, these requests do not preserve a
challenge to the court’s omission of a necessity defense instruction.

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Opinion of the Court

II. Fundamental Error.

¶19 Because Hendricks did not request a necessity instruction at
trial, we review the superior court’s omission of a necessity instruction for
fundamental error. Ariz. R. Crim. P. 21.3(b); State v. Escalante, 245 Ariz. 135,
142 ¶ 1 (2018). Hendricks has the burden to establish that the error (1)
occurred, (2) was fundamental, and (3) caused him prejudice. State v. James, 231 Ariz. 490, 493 ¶ 11 (App. 2013) (citing cases).

¶20 Hendricks argues that the court committed fundamental
error by not sua sponte giving a necessity instruction. But in support,
Hendricks cites an opinion by this Court that the Arizona Supreme Court
vacated during the course of this appeal. See State v. Jones, 559 P.3d 1112,
1114 (Ariz. App. 2024) (holding that the superior court erred by not sua
sponte instructing the jury on a justification defense), review granted, opinion
vacated, No. CR-24-0286-PR, 2025 WL 711118 (Ariz. Mar. 5, 2025). In
vacating Jones, the supreme court remanded for reconsideration in light of
this Court’s opinion in Brown. Jones, No. CR-24-0286-PR. In Brown, this
Court held that “[t]rial courts have no duty to instruct the jury on
justification defenses that have not been requested.” 556 P.3d at 782 ¶ 30.
Thus, because the court did not have a duty to sua sponte instruct the jury
on a necessity defense, the court did not err.

CONCLUSION

¶21 We affirm.

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

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