[Copyrighted Material Omitted]
Appeal from the Superior Court in Cochise County. No. CR201200006. The Honorable Wallace R. Hoggatt, Judge.
For Appellee: Jonathan Bass, Assistant Attorney General, Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix.
For Appellant: Joel A. Larson, Cochise County Legal Defender, Bisbee.
Presiding Judge Miller authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Espinosa concurred.
[236 Ariz. 320] MILLER, Presiding Judge:
[¶1] We previously issued an opinion in this matter. State v. Ruiz, 236 Ariz. 15, 335 P.3d 537 (App. 2014). On Adolfo Ruiz's motion for reconsideration and in light of certain points raised concerning that portion of our decision addressing the trial court's restitution order, we grant the motion, vacate our prior opinion, and issue this new opinion in its stead.
[¶2] Ruiz was convicted after a jury trial of two counts of attempted manslaughter by sudden quarrel or heat of passion, and one count of aggravated assault with a deadly weapon or dangerous instrument. This appeal requires us to determine whether a person commits attempted sudden quarrel or heat of passion manslaughter if death does not occur, the person knew only that his conduct would cause " serious physical injury," and he did not intend for his conduct to cause death. For the following reasons, we affirm Ruiz's aggravated assault conviction and sentence, but vacate his attempted manslaughter convictions and sentences, and remand for further proceedings.
Factual and Procedural Background
[¶3] We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In January 2012, Ruiz was involved in a fist-fight in a bar that began with a shove from M.M. As he was being escorted outside by C.R., he produced a gun and fired two shots that struck C.R. Ruiz was then pushed out of the bar and onto the ground, causing him to drop the gun. Ruiz immediately picked it up and shot M.M. Ruiz testified he was in fear of his life from multiple persons; further, the bullets that struck C.R. and M.M. were either warning shots or inadvertent discharges caused by struggles with other people as they grappled to get the gun.
[¶4] The indictment charged Ruiz with two counts of attempted second-degree murder. He also was charged with aggravated assault for each of the shots that struck C.R. and M.M. The jury found Ruiz guilty of two counts of the lesser-included offense of attempted manslaughter, and one count of aggravated assault against M.M. The jury acquitted Ruiz of two counts of aggravated assault against C.R. He was sentenced to presumptive, consecutive, and concurrent prison terms totaling fifteen years.
[¶5] Ruiz does not challenge the sufficiency of the evidence to support his convictions, but argues the trial court improperly instructed the jury. He contends the court's instruction permitted the jury to find him guilty of attempted manslaughter based only on conduct intended to cause serious physical injury. Stated differently, he maintains the state was relieved of the burden of proving he had engaged in conduct intended to culminate in death. Because Ruiz raises this argument for the first time on appeal, we review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶ ¶ 19-20, 115 P.3d 601, 607 (2005).
Attempted Manslaughter Instruction
[¶6] The trial court instructed the jury that if it found Ruiz not guilty of attempted second-degree murder or if it could not reach a verdict on that charge, it could consider whether he had committed attempted manslaughter under A.R.S. § 13-1103(A)(2). The court defined the latter as follows:
The crime of manslaughter by sudden quarrel or heat of passion requires proof that:
A person intentionally killed another person; or
A person caused the death of another person by conduct which the defendant knew would cause death or serious physical injury; and
A person acted upon a sudden quarrel or heat of passion; and the
sudden quarrel or
[236 Ariz. 321]heat of passion resulted from adequate
provocation by the ...