Cited by

See Salazar, 173 Ariz. at 408; (noting that if a defendant “produces evidence that he simply did not commit the offense and the state produces evidence that he committed the offense as charged,” “there is usually little evidence [in] the record to support an instruction on .

¶23 McKinley fails to establish error, fundamental or otherwise, because “no specific finding of dangerousness is required where an element of the offense charged requires proof of the dangerous nature of the felony.” –38 (1984) (reasoning that a jury’s dangerousness determination may be made either explicitly by special verdict or implicitly when dangerousness is “a necessary element in the felony for which the appellant was originally convicted.”).

there will ‘usually [be] little evidence on the record to support an instruction on the [lesser- included] offenses.’” Wall, 212 Ariz. at 6, ¶ 29 ().

¶ 18 (2006) (-37 (1984)).

at 4 ¶ 18 (internal citations omitted) (–37 (1984)).

esser-included offense instruction even when the defendant employs an all-or-nothing defense,” although, “[a]s a practical matter, when a defendant asserts an all-or-nothing defense such as alibi or mistaken identity, there will ‘usually [be] little evidence on the record to support an instruction on the lesser included offenses.’” ¶¶ 29-30, 126 P.3d at 153, (first alteration added, second alteration in Wall).

(“[T]he determination of whether or not an object is a deadly or dangerous weapon is a jury question.”); (“[I]f a weapon’s deadly character depends on the manner and circumstances of its use, it is for the jury to determin

7 (App. 2002) (jury question whether prosthetic device qualifies as dangerous instrument); (“whether or not an object [inoperable firearm] is a deadly or dangerous weapon is a jury question”); (to prove flare gun was dangerous instrument under circumstances of its use, state required to show it was readily

Thus, a lesser- included offense instruction is required if the jury could “find (a) that the State failed to prove an element of the greater offense and (b) that the evidence is sufficient to support a conviction on the lesser offense.” Wall, 212 Ariz. at 4, ¶ 18, 126 P.3d at 151 (-37, -45 (1984)).

(citing Smith, , -38 , -46 (1984)) *356 (holding that dangerousness can be found when it was a necessary element in the felony for which the defendant was convicted).

See, -38 , -46 (1984) (holding that the jury must a make a finding of dangerousness under former § 13-604.01).

(parole); , , (any other release from confinement).

-38 , -46 (1984) (citations omitted).

14 *629 , when a defendant proffers an alibi defense, the record usually contains little evidence to support an instruction on a lesser included offense.

And they sent me out on a job search and I didn’t come back.” , (“Mandatory release” status from department of corrections included within term “any other release from confinement” under A.R.S.

In State v. Bustamonte, dealing with a pair of scissors, we held that if an instrument is not inherently dangerous as a matter of law, like a gun or knife, the jury can determine whether the defendant used the object in such a way that it became a “deadly weapon.” , , (“whether or not an object [inoperable firearm] is a deadly or dangerous weapon is a jury question”).

§ 13-604(K); -38 , -46 (1984)

§ 13-604.01 provides for enhanced punishment if the offense is committed while the defendant is on parole “or any other release from con-finement____”