State v. King

SUPREME COURT OF ARIZONA
En Banc

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-09-0333-PR
)
Appellant, ) Court of Appeals
) Division Two
v. ) No. 2 CA-CR 09-0047
)
) Pima County
ADAM SCOTT KING, ) Superior Court
) No. CR20081774
)
Appellee. ) O P I N I O N
_________________________________ )

Appeal from the Superior Court in Pima County
The Honorable Edgar B. Acuña, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
222 Ariz. 636, 218 P.3d 1093 (App. 2009)

VACATED
________________________________________________________________

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Jacob R. Lines, Deputy County Attorney
Attorneys for State of Arizona

BARTON & STORTS, P.C. Tucson
By Brick P. Storts, III
William E. Perry, III
Attorneys for Adam Scott King
________________________________________________________________

B E R C H, Chief Justice

¶1 The parties have asked us to decide whether a defendant

in a criminal case must have acted solely from a reasonable
belief that he faced immediate physical danger to qualify for a

self-defense jury instruction. We hold that the governing

statute does not impose such a requirement. See Ariz. Rev.

Stat. (A.R.S.) § 13-404 (2010).

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 Adam Scott King claims that a homeless person threw a

full two-liter bottle of water at him, hitting him in the head.

In response, King struck the victim several times and kicked him

in the side. The victim’s body was found three days later. The

victim had five broken ribs and had died from internal bleeding

caused by laceration of the spleen.

¶3 King was indicted for second degree murder. At trial,

the court denied his request for a self-defense instruction.

After the jury returned a guilty verdict, King moved for a new

trial. The court granted the motion, concluding that it had

applied the wrong standard when considering whether to give the

self-defense instruction.

¶4 The court of appeals reversed the order granting the

new trial, holding that King was not entitled to a self-defense

instruction because he had not presented sufficient evidence

that he acted solely from fear of immediate physical danger,

citing State v. Dumaine, 162 Ariz. 392, 404, 783 P.2d 1184, 1196

(1989). State v. King, 222 Ariz. 636, 638 ¶ 11, 218 P.3d 1093,

1095 (App. 2009). The court observed that Arizona’s case law on

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self defense does not comport with the language in A.R.S. § 13-

404(A), the statute governing “justification” for use of force,

but concluded that it was bound by the language in Dumaine. Id.

at ¶ 10, 218 P.3d at 1095. We granted review to clarify the

elements of a justification defense under A.R.S. § 13-404. We

have jurisdiction pursuant to Article VI, Section 5(3) of the

Arizona Constitution and A.R.S. § 12-120.24 (2003).

II. DISCUSSION

¶5 Whether a defendant must act solely based on the

belief that self defense is necessary to prevent immediate

physical harm is an issue of statutory interpretation, which we

review de novo. State v. Gomez, 212 Ariz. 55, 56 ¶ 3, 127 P.3d

873, 874 (2005).

A. Arizona’s Justification Statute

¶6 Arizona’s justification statute permits a person to act

in self defense in certain circumstances:

[A] person is justified in threatening or using
physical force against another when and 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. § 13-404(A). Justification is not an affirmative defense

that the defendant must prove. Id. § 13-205(A) (2010).

Instead, if the defendant presents evidence of self defense, the

state bears the burden of proving “beyond a reasonable doubt

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that the defendant did not act with justification.” Id.

¶7 Although A.R.S. § 13-404(A) thus permits the use of

physical force to defend oneself, it does not allow unlimited

use of force. Rather, the statute authorizes force only if and

to the extent that a reasonable person would believe necessary

to protect against another’s use or attempted use of physical

force. Id. Nothing in the statutory language requires that

fear of imminent harm be the sole motivation for employing self

defense.

¶8 The sole motivation requirement predates statehood,

stemming from an early homicide statute that justified self

defense if the circumstances were “sufficient to excite the

fears of a reasonable person, and the party killing . . . acted

under the influence of such fears alone.” Ariz. Penal Code,

tit. VII, ch. 1, § 182 (1901) (emphasis added), superseded by

Ariz. Rev. Code § 4590 (1928) (amended A.R.S. § 13-462 (1956),

and repealed by 1977 Ariz. Sess. Laws, ch. 142, § 15 (1st Reg.

Sess.)).

¶9 The justification statute was substantially changed in

1977 during extensive legislative revisions to the criminal

code. At that time, the legislature repealed the earlier

version of the justifiable homicide statute and replaced it with

A.R.S. § 13-404, the umbrella justification statute currently in

force. 1977 Ariz. Sess. Laws, ch. 142, §§ 15, 44 (1st Reg.

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Sess.). Although the justification statute no longer requires

that the defendant have acted solely because of fear of imminent

physical harm, courts, including this Court, have continued to

suggest, albeit in dictum, that for the justification defense to

apply, a defendant’s fear must be the sole motivation for using

force. See, e.g., State v. Grannis, 183 Ariz. 52, 60, 900 P.2d

1, 9 (1995); Dumaine, 162 Ariz. at 404, 783 P.2d at 1196; State

v. Reid, 155 Ariz. 399, 403, 747 P.2d 560, 564 (1987); State v.

Plew, 150 Ariz. 75, 77, 722 P.2d 243, 245 (1986); State v.

Noriega, 142 Ariz. 474, 482, 690 P.2d 775, 783 (1984), overruled

on other grounds by State v. Burge, 167 Ariz. 25, 804 P.2d 754

(1990).

¶10 The court of appeals concluded that the 1977 revision

was based on the Model Penal Code (MPC) self-defense provision.

King, 222 Ariz. at 638 ¶ 9, 218 P.3d at 1095. The court noted

that the comments to the MPC highlight the omission of the “sole

motivation” requirement and explain that the MPC provision “does

not demand that [the defendant’s fear] be the sole motive [for

the defendant’s] action,” MPC § 3.04 cmt. 2(b) & n.13 at 39

(Official Draft 1962), supporting its conclusion that the sole

motivation requirement should no longer apply in Arizona, see

King, 222 Ariz. at 638 ¶ 9, 218 P.3d at 1095. Nonetheless, the

court of appeals felt constrained by Dumaine to require that

fear of imminent harm be the sole motivation for a defendant’s

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use of self defense. Id. at 638 ¶ 10, 218 P.3d at 1095.

¶11 We disagree that the legislature adopted the MPC

provision on self defense. The MPC provision employs a

subjective standard, allowing a defendant to justifiably use

force “when the actor believes that such force is immediately

necessary for the purpose of protecting himself.” MPC § 3.04(1)

(Official Draft 1962) (emphasis added). Section 13-404(A), in

contrast, adopts a purely objective standard, permitting the use

of force only if a “reasonable person would believe that

physical force is immediately necessary to protect himself.”

See State v. Eddington, 95 Ariz. 10, 13, 386 P.2d 20, 22 (1963)

(interpreting earlier version of self-defense statute containing

“reasonable [person]” language to impose an objective standard).

¶12 We conclude that the sole motivation requirement no

longer applies because § 13-404(A), by its terms, does not

require that self defense be the defendant’s sole motivation for

employing self defense. The statute no longer turns on the

defendant’s subjective motivations, but instead focuses on the

reaction of an objective “reasonable person.” Thus, the sole

question is whether a reasonable person in the defendant’s

circumstances would have believed that physical force was

“immediately necessary to protect himself.” A.R.S. § 13-404(A).

For this reason, we disapprove any language in cases suggesting

or requiring that the defendant’s fear of imminent harm be the

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sole motivation for employing self defense.

B. King’s Justification Defense

¶13 We now turn to whether the evidence, viewed in the

light most favorable to King, warranted giving a self-defense

instruction. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493,

503, 917 P.2d 222, 232 (1996) (viewing evidence in light most

favorable to proponent of instruction); Ariz. R. Crim. P. 21.1

(applying law relating to jury instructions in civil actions to

criminal actions). We review for abuse of discretion the trial

court’s ultimate decision to give a self-defense instruction

when it granted King’s motion for a new trial. See State v.

Garcia, 224 Ariz. 1, 18 ¶ 75, 226 P.3d 370, 387 (2010); State v.

Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993).

¶14 A defendant is entitled to a self-defense instruction

if the record contains the “slightest evidence” that he acted in

self defense. State v. Lujan, 136 Ariz. 102, 104, 664 P.2d 646,

648 (1983). The defendant need not present evidence of each

element of self defense because the state bears the burden of

proving “beyond a reasonable doubt that the defendant did not

act with justification”; thus the defendant need only present

some evidence that he acted in self defense to be entitled to a

self-defense instruction. A.R.S. § 13-205(A).

¶15 The State argues that King did not present even the

slightest evidence that he acted in self defense. We disagree.

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The “slightest evidence” is a low standard that has been defined

in the self-defense context as “a hostile demonstration, which

may be reasonably regarded as placing the accused apparently in

imminent danger of losing her life or sustaining great bodily

harm.” Lujan, 136 Ariz. at 104, 664 P.2d at 648 (quoting State

v. Wallace, 83 Ariz. 220, 223, 319 P.2d 529, 531 (1957)).

¶16 As the trial court noted in granting King’s motion for

a new trial, the record contained some evidence that King acted

in response to being hit in the head by a two-liter bottle of

water thrown by the victim. The thrown bottle suffices to meet

the “slightest evidence” standard that supports the giving of a

self-defense instruction. See Lujan, 136 Ariz. at 104, 664 P.2d

at 648.

¶17 This case differs from Lujan, in which we affirmed the

denial of a self-defense instruction. There, the defendant

provoked the “hostile demonstration” that he later claimed

required him to act in self defense. Id. We held that “[t]he

privilege of self-defense is not available to one who is at

fault in provoking an encounter or difficulty that results in a

homicide.” Id.; see also § 13-404(B)(3). Here, in contrast,

King presented evidence that the victim precipitated the

altercation by throwing the bottle at him without provocation.

¶18 Because King introduced evidence that he may have acted

to defend himself against the victim’s aggression, the trial

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court did not abuse its discretion in determining that he was

entitled to a justification instruction under A.R.S. § 13-

404(A). The defendant need not present evidence that his

response was reasonably proportionate because, by statute, the

burden remains on the state to prove that the defendant’s acts

were not justified. See A.R.S. §§ 13-205(A), -404(A).

Therefore, the State may attempt to persuade the factfinder at

the new trial that King’s response was not proportionate to the

threat he faced, and therefore his acts were not justified.

III. CONCLUSION

¶19 We vacate the opinion of the court of appeals and

affirm the trial court’s order granting King a new trial.

_____________________________________
Rebecca White Berch, Chief Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
A. John Pelander, Justice

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