State v. Bean

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DEVON LATERRELL BEAN, Appellant.

Nos. 1 CA-CR 24-0373
1 CA-CR 24-0378
(Consolidated)
FILED 08-12-2025

Appeal from the Superior Court in Maricopa County
Nos. CR2021-002280-001
CR2022-134482-002
The Honorable Michael W. Kemp, Judge Retired

AFFIRMED IN PART, VACATED IN PART AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Kyle Kinkead
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 Vice Chief Judge David D. Weinzweig joined.

K I L E Y, Judge:

¶1 A jury convicted Devon Bean of second-degree murder and
aggravated assault. He then pled guilty to misconduct involving weapons
(“MIW”), and his probation for a prior felony conviction was revoked. We
vacate his convictions for second-degree murder and aggravated assault
due to instructional error at trial, and affirm in all other respects.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts and all reasonable inferences in the light
most favorable to affirming Bean’s convictions. State v. Haywood, 257 Ariz.
472, 475, ¶ 2 (App. 2024) (citation omitted).

¶3 In September 2022, Bean, his brother D.B., and an
acquaintance, Q.M., all attended a Labor Day barbeque at the apartment
complex where Q.M.’s girlfriend, T.M., lived. While speaking in T.M.’s
apartment, Bean and Q.M. got into an argument which quickly grew
heated. They stepped out of the apartment into the courtyard, where they
continued to argue. Although D.B., too, was in the courtyard, his back was
turned on the two men because he was grilling food.

¶4 Noticing that Bean kept touching the gun tucked in his
waistband, Q.M. retrieved a gun from T.M.’s apartment and returned to the
courtyard. The argument escalated until Bean drew his gun and fired at
Q.M.

¶5 When Bean began shooting, Q.M. drew his gun and returned
fire, striking Bean in the hand and leg. Hearing the commotion, D.B. turned
and saw Q.M. shooting at his brother. Acting, as he later explained, to “save
[his] brother’s life,” D.B. pulled out his own gun and shot at Q.M.

¶6 Several of the shots fired in Q.M.’s direction missed him and
“shattered” the sliding glass door of the apartment behind him. The bullets
struck and injured two young brothers who were sitting in the living room.

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¶7 Bean was transported to the hospital, treated, and released.
Q.M. did not survive. The medical examiner later testified that Q.M. died
from “multiple gunshot wounds,” including a shot through the neck that
“tore” open the carotid artery and a second shot to the head that left a bullet
fragment in his brain.

¶8 Bean’s gun was “a Glock, .45 auto pistol,” while D.B.’s was “a
Smith & Wesson nine-millimeter Luger, semiautomatic pistol.” A forensics
firearms expert testified that the bullet fragment lodged in Q.M.’s brain was
not fired from a Glock pistol; he could not determine whether it was fired
from a Smith & Wesson 9-millimeter pistol. The bullet that lodged in Q.M.’s
brain, in other words, did not come from Bean’s gun, and so must have
come from D.B.’s. The bullet that severed Q.M.’s carotid artery was never
recovered, and so the source of that bullet could not be determined.

¶9 The State charged Bean with second-degree murder, a class 1
felony in violation of A.R.S. § 13-1104, and two counts of aggravated assault
with a deadly weapon, class 3 felonies in violation of A.R.S. § 13-1204 in
Maricopa County Superior Court Case No. CR2022-134482-002 (the “2022
case”). Because Bean was a prohibited possessor due to a prior felony
conviction, he was also charged with MIW, a class 4 felony in violation of
A.R.S. § 13-3102. The MIW count was later severed for trial.

¶10 The State charged D.B., who was also a prohibited possessor,
with MIW. The State also charged him with tampering with physical
evidence based on his attempt to dispose of his gun after the shootings. The
State did not, however, charge D.B. for Q.M.’s death or the shooting of the
two boys. As the prosecutor later explained, the State concluded that D.B.
shot at Q.M. in defense of Bean, and therefore that his conduct was justified.
See A.R.S. § 13-406 (justification; defense of a third person).

¶11 Trial began in November 2023. Throughout the trial, the State
acknowledged that it could not prove which gunshots were fired by Bean
and which by D.B. The State argued, however, that Bean was guilty of
second-degree murder and aggravated assault because he recklessly
initiated the exchange of gunfire that “caused” Q.M.’s death and the boys’
injuries. Bean argued that he was not guilty because he shot at Q.M. in self-
defense.

¶12 At trial, the State called the investigating detective and other
officers who responded to the scene, the medical examiner, and a firearms
expert as witnesses. The State also called the two boys who were shot in
their apartment as well as T.M. and several other people who were present

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at the Labor Day barbeque. The State presented video footage of the
shooting obtained from the apartment complex’s security camera. The
video shows Bean engaged in an evidently heated conversation with Q.M.
when he pulls the gun from his waistband, points it at Q.M., and begins
shooting. The video shows Q.M. moving away from Bean and out of view
of the camera. The video then shows D.B. coming into view and firing in
Q.M.’s direction.

¶13 At the close of the State’s case-in-chief, defense counsel
moved for judgment of acquittal under Arizona Rule of Criminal Procedure
(“Rule”) 20 on the second-degree murder count, arguing there was no
substantial evidence to support a conviction because the State did not prove
that Bean “fire[d] the fatal shot.”1 In response, the State argued that no
single gunshot killed Q.M., pointing out that the medical examiner
determined that Q.M. died from the “culmination” of “multiple gunshot
wounds.” In any event, the State argued, whether Bean or D.B. fired the
fatal shot was irrelevant. Because “it was [Bean] that started [the]
interaction,” the prosecutor concluded, “he was the cause of [Q.M.’s]
death.” The court denied Bean’s Rule 20 motion.

¶14 Bean did not testify in his own defense. He called D.B. as a
witness, who testified that he was grilling food at the party when he heard
gunfire. He turned and saw the confrontation between Bean and Q.M., and
so he pulled out his gun and shot at Q.M. “[t]o save [his] brother’s life.”
Although he admitted that he did not see who started the confrontation
between Q.M. and Bean, he indicated that he believed Q.M. to be
dangerous, describing him as “hotheaded” and stating that Q.M. had once
“bragged” about “shooting somebody.”

¶15 The court instructed the jurors that they could convict Bean of
second-degree murder based on Q.M.’s death if they found that the State
proved beyond a reasonable doubt that,

[u]nder circumstances manifesting extreme indifference to
human life, the defendant recklessly engaged in conduct that
created a grave risk of death and thereby caused the death of
[Q.M.]. The risk must be such that disregarding it was a gross
deviation from what a reasonable person in the defendant's
situation would have done.

1 Bean did not move for judgment of acquittal on the aggravated assault

counts.

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¶16 The court instructed the jurors that they could convict Bean of
aggravated assault based on the gunshot injuries to the boys in the
apartment if they found that the State proved beyond a reasonable doubt
that “[t]he defendant committed an assault and . . . used a deadly weapon
or dangerous instrument.”2

¶17 At Bean’s request, the court instructed the jurors on self-
defense, justification in the use of deadly physical force, and justification in
the use of force in crime prevention. See Rev. Ariz. Jury Instr. (“RAJI”)
Stand. Crim. 4.04 (self-defense), 4.05 (physical force), RAJI 4.11 (crime
prevention) (6th ed. 2022).

¶18 The State’s requested jury instructions included RAJI
Standard Criminal 3.01, an instruction on accomplice liability. Defense
counsel objected, arguing that Bean could not be criminally liable as D.B.’s
accomplice because the State conceded that D.B. acted with justification in
shooting at Q.M. The court overruled Bean’s objection and instructed the
jurors as follows:

“Accomplice” means a person, who, with the intent to
promote or facilitate the commission of the offense, does any
of the following:

1. Solicits or commands another person to commit the offense;
or

2. Aids, counsels, agrees to aid, or attempts to aid another
person in planning or committing the offense; or

3. Provides means or opportunity to another person to
commit the offense.

A defendant is criminally accountable for the conduct of
another if the defendant is an accomplice of such other person
in the commission of the offense including any offense that is
a natural and probable or reasonably foreseeable consequence
of the offense for which the person was an accomplice.

A.R.S. § 13–301; RAJI Stand. Crim. 3.01.

2 For the aggravated assault count against the younger of the two boys, the

jury was also instructed that the offense could be established by evidence
that he was under the age of 15. See A.R.S. § 13-1204(A)(6).

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¶19 The court also gave the jurors the following instruction:

You must consider all these instructions. Do not pick out one
instruction, or part of one, and ignore the others. As you
determine the facts, however, you may find that some
instructions no longer apply. You must then consider the
instructions that do apply, together with the facts as you have
determined them.

¶20 In closing argument, the State noted that Q.M. suffered
multiple gunshot wounds, and acknowledged that it could not identify
which of the gunshots killed him. The State argued, however, that even if
the fatal shot was fired by D.B. and not Bean, Bean was nonetheless guilty
of second-degree murder because, by “pointing a gun” and “shooting at”
Q.M., he was responsible for the ensuing exchange of gunfire. Q.M.’s death,
the prosecutor concluded, was “the result of actions that were caused by
[Bean],” and therefore Bean “is responsible for [Q.M.’s] death.” The State
likewise argued even if bullets that struck the two boys in the apartment
did not come from Bean’s gun, their injuries were “still the result of actions
that were caused by [Bean].” The State went on to rebut Bean’s claim of self-
defense, arguing that it was not supported by evidence.

¶21 In closing argument, defense counsel focused primarily on
Bean’s justification defense. Defense counsel also argued, however, that
Bean could not be guilty of second-degree murder under any circumstances
because the State failed to prove he fired the shot that killed Q.M. In all
likelihood, counsel insisted, D.B., rather than Bean, fired the fatal shot,
explaining that the firearms expert determined that the “projectile that was
recovered from [Q.M.’s] brain” did not come from Bean’s Glock. For similar
reasons, defense counsel asserted, Bean was not “criminally responsible for
what happened to” the two boys.

¶22 The jury found Bean guilty of second-degree murder and both
counts of aggravated assault, and further found aggravating circumstances
for each count. Shortly thereafter, Bean pled guilty to the severed MIW
count.

¶23 The trial court sentenced Bean to a term of 20 years in prison
for second-degree murder, concurrent terms of 4.5 years and 8 years,
respectively, for MIW and one of the aggravated assault counts, and a
consecutive term of 8 years for the remaining aggravated assault count.

¶24 At the time of the events giving rise to the 2022 case, Bean was
on felony probation in Maricopa County Superior Court Case No. CR2021-

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002280-001 (the “2021 case”). Based on the jury’s verdicts in the 2022 case,
the court revoked Bean’s probation in the 2021 case and sentenced him to a
concurrent term of 3.5 years in prison. See Ariz. R. Crim. P. 27.8(e)
(providing for revocation of probation upon determination of guilt for
another offense).

¶25 Bean filed timely notices of appeal. This Court has jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§
12-120.21, 13-4031, and -4033(A).

DISCUSSION

¶26 On appeal, Bean challenges his convictions for second-degree
murder and aggravated assault, asserting that the trial court erred in
instructing the jury on accomplice liability. Whether the superior court
erred in giving or refusing to give a requested instruction is reviewed for
an abuse of discretion; whether an instruction accurately stated the law is
reviewed de novo. State v. Dann, 220 Ariz. 351, 363-64, ¶ 51 (2009) (citations
omitted). When considering a challenge to a jury instruction, a reviewing
court “consider[s] the instructions in their entirety.” State v. Rix, 256 Ariz.
125, 138, ¶ 43 (App. 2023) (citation omitted). A reviewing court “will not
reverse a jury verdict based on an erroneous instruction unless the
instructions, taken as a whole, could reasonably mislead a jury.” Id. (citation
omitted).

¶27 Arizona Revised Statutes Section 13-303 sets forth the
circumstances in which a person may be criminally liable for a crime
committed by another.3 Because the State concedes that the shots that killed

3 The statute provides,

A. A person is criminally accountable for the conduct of another if:
1. The person is made accountable for such conduct by the
statute defining the offense; or
2. Acting with the culpable mental state sufficient for the
commission of the offense, such person causes another person,
whether or not such other person is capable of forming the
culpable mental state, to engage in such conduct; or
3. The person is an accomplice of such other person in the
commission of an offense including any offense that is a natural
and probable or reasonably foreseeable consequence of the
offense for which the person was an accomplice.

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Q.M. and injured the two boys may have come from D.B.’s gun, Bean could
be criminally liable for Q.M.’s death and the boys’ injuries only as
authorized by Section 13-303.

¶28 Bean argues that the court erred in instructing the jurors on
accomplice liability under Subsection A(3) of Section 13-303, stating that the
instruction lacked “evidentiary or legal support.” The jurors could not
properly find that he and his brother were accomplices to Q.M.’s death,
Bean asserts, because the State presented “no evidence” that he ever
“contemplated” that his brother would become “involve[d]” in his
confrontation with Q.M. Moreover, Bean maintains, he could not possibly
be an “accomplice” to D.B.’s conduct in firing his gun because, as the State
conceded, D.B.’s conduct was justified. One cannot, he contends, be
criminally liable as an “accomplice” to a lawful act.

¶29 In response, the State concedes that the evidence presented at
trial would not support a finding that Bean was an “accomplice” as that
term is statutorily defined. See A.R.S. § 13-301. Acknowledging that the
court erred in giving the accomplice liability instruction, the State
nonetheless asserts the error in giving the instruction was harmless.

¶30 Because Bean objected to the instruction that the State now
concedes was erroneous, we review for harmless error. State v. Moore, 222
Ariz. 1, 14, ¶ 67 (2009) (citation omitted). Harmless error review “places the
burden on the state to prove beyond a reasonable doubt that the error did
not contribute to or affect the verdict.” State v. Strong, 258 Ariz. 184, 200,
¶ 45 (2024) (quotation omitted).

¶31 In support of its assertion that instructing the jurors under the
wrong subsection of Section 13-303 was harmless error, the State maintains
that the erroneous accomplice liability instruction could not have affected
the verdicts because the instruction was so obviously unsupported by

B. If causing a particular result is an element of an offense, a person
who acts with the kind of culpability with respect to the result that is
sufficient for the commission of the offense is guilty of that offense if:
1. The person solicits or commands another person to engage in
the conduct causing such result; or
2. The person aids, counsels, agrees to aid or attempts to aid
another person in planning or engaging in the conduct causing
such result.
A.R.S. § 13-303.

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evidence that the jurors would have had no trouble recognizing the
instruction’s inapplicability. “It defies common sense and logic,” the State
insists, “to conclude that jurors will come to a decision based on [a] theory
that is not factually supported.” In support of its position, the State cites
case law recognizing that jurors are presumed to be capable of
distinguishing between instructions that are supported by the evidence
presented and instructions that are not. See Griffin v. United States, 502 U.S.
46, 59-60 (1991) (rejecting claim of due process violation based on trial
court’s instructing of the jury on two different legal theories of guilt, only
one of which was supported by the evidence; “[T]he chance [is] remote . . .
that the jury convicted on a ground that was not supported by adequate
evidence when there existed alternative grounds for which the evidence
was sufficient.” (quotation omitted)); State v. Fierro, 254 Ariz. 35, 44-45,
¶¶ 35-36 (2022) (affirming conviction for attempted second-degree murder
despite error in jury instruction, and “presum[ing]” that the jury followed
“the correct language in” the jury instruction defining the offense and
“disregarded the erroneous parts”); State v. Malaga, 132 P.3d 703, 709, ¶ 15
(Utah Ct. App. 2006) (holding that because “the State never pursued . . . the
theory of accomplice liability at trial,” the accomplice liability instruction
“was superfluous” and caused no prejudice to defendant (citation
modified)). “[A] verdict should not be vacated,” the State contends, merely
because “a factually unsupported theory [was] submitted to the jury along
with factually supported theories.”

¶32 We are not persuaded. Accomplice liability is a legal theory
of liability, and courts do not presume that jurors recognize and disregard
instructions that set forth incorrect or inapplicable legal theories. Griffin, 502
U.S. at 59 (“Jurors are not generally equipped to determine whether a
particular theory of conviction submitted to them is contrary to law.”;
“When, therefore, jurors have been left the option of relying upon a legally
inadequate theory, there is no reason to think that their own intelligence
and expertise will save them from that error.”). On the contrary, because
courts presume that jurors “follow[] their instructions,” State v. Dann, 220
Ariz. at 366, ¶ 75 (citations omitted), we cannot simply assume that the
jurors disregarded the erroneous accomplice liability instruction.
Moreover, the presumption that jurors will recognize and reject an
inapplicable instruction in favor of a correct one cannot possibly apply
when, as here, the jurors are given only a single vicarious liability
instruction and that instruction is wrong. See Leon v. Marner, 244 Ariz. 465,
470, ¶ 13 (App. 2018) (reversing defendant’s conviction based on erroneous
instruction “[b]ecause no other instruction offered an alternative means of
convicting [defendant]”).

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¶33 The State goes on to assert that the error in giving the
accomplice liability instruction “did not contribute to the jury’s verdict”
because at trial the State proceeded on “a valid legal theory” that was
“supported by substantial evidence.” Specifically, the State asserts, the
prosecutor argued at trial that Bean “caused” Q.M.’s death because,
“through his reckless conduct in firing the gun at [Q.M.],” Bean “set[] in
motion [D.B.’s] reasonably foreseeable reaction” in “com[ing] to [Bean’s]
defense.” D.B.’s “actions,” the State argues, “were a reasonably foreseeable
consequence of [Bean’s] actions,” and so “did not break the causal chain.”
The prosecutor’s theory of liability at trial, the State goes on, was consistent
with Subsection A(2) of Section 13-303. See A.R.S. § 13-303(A)(2) (“A person
is criminally accountable for the conduct of another if . . . [a]cting with the
culpable mental state sufficient for the commission of the offense, such
person causes another person . . . to engage in such conduct.”). Because the
legal theory the prosecutor asserted at trial was a valid theory of vicarious
liability under Section 13-303, the State concludes, Bean’s convictions
should be affirmed.

¶34 We are unpersuaded by the State’s argument that Bean’s
convictions should be affirmed because Subsection A(2) established a
proper legal basis for holding him liable for his brother’s actions. Whether
Bean could properly be held liable under Subsection A(2) is a question for
the jury to resolve at trial, not for an appellate court to determine for the
first time on appeal. See McCormick v. United States, 500 U.S. 257, 270 n.8
(1991) (“Appellate courts are not permitted to affirm convictions on any
theory they please simply because the facts necessary to support the theory
were presented to the jury.”). The jurors were never instructed under
Subsection A(2), nor were they instructed on the “causation” principles on
which that subsection is based. See RAJI Stand. Crim. 2.03.03 (Causation –
Multiple Actors); 2.03 (Causation – Intervening Event). Because the jurors
were never instructed under Subsection A(2), we cannot presume to know
what their verdict would have been if they had been. See Commonwealth v.
Mills, 764 N.E.2d 854, 864-65 (Mass. 2002) (reversing larceny conviction
even though evidence could have supported a conviction under a theory of
larceny by false pretenses because jury was instructed only on elements of
traditional larceny).

¶35 The State asserts, in a cursory manner, that “the absence of an
instruction” under Subsection A(2) of Section 13-303 “did not prejudice”
Bean because “the jury was properly instructed on the elements of second-
degree murder.” Noting that the second-degree murder instruction
required the jury to find, inter alia, that Bean “caused the death of [Q.M.],”
the State suggests that the second-degree murder instruction adequately

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informed the jurors of the “[c]ausation” principles that they would have
learned had they been instructed under Subsection A(2).

¶36 Because the second-degree murder statute, A.R.S. § 13-1104,
does not, by itself, provide for vicarious liability, we see no basis for the
State’s suggestion that the second-degree murder instruction somehow
served as an adequate substitute for a vicarious liability instruction under
Section 13-303. We therefore reject the State’s position that the error in
instructing the jury under Subsection A(3) of Section 13-303 was harmless
because the jurors could have properly convicted Bean under Subsection
A(2) had they been instructed on that statute. See Dunn v. United States, 442
U.S. 100, 107 (1979) (“[A]ppellate courts are not free to revise the basis on
which a defendant is convicted simply because the same result would likely
obtain on retrial.”).

¶37 To hold Bean liable for his brother’s conduct, the State was
required to establish a basis for vicarious liability under Section 13-303. The
State concedes that the jury was instructed under Subsection A(3) when it
shouldn’t have been, and that the jury should have been instructed under
Subsection A(2) but wasn’t. Because the remaining instructions did not
adequately set forth the relevant principles for establishing vicarious
liability under Section 13-303, we reverse Bean’s convictions for second-
degree murder and aggravated assault and remand for a new trial.

¶38 Bean also raises the alternative argument that the jury’s
verdicts should be set aside because the court erred in dismissing a
particular prospective juror for cause. Because we set aside Bean’s
convictions due to instructional error, we need not address his alternative
challenge to his convictions.

¶39 Bean does not challenge his MIW conviction in the 2022 case,
which resulted from his post-trial guilty plea. We therefore affirm his MIW
conviction. And because his MIW conviction in the 2022 case establishes a
proper basis for the revocation of Bean’s probation in the 2021 case, we
affirm the revocation of his probation as well. Ariz. R. Crim. P. 27.8(e).

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CONCLUSION

¶40 Based on the foregoing, we vacate Bean’s convictions and
sentences for second-degree murder and aggravated assault in the 2022
case. We affirm his MIW conviction in that case and the revocation of his
probation in the 2021 case, and remand for further proceedings consistent
with this decision.

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

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