IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

ANDY DANIEL ALMEIDA,

Appellant.

No. 2 CA-CR 2014-0267

Filed August 19, 2015

Appeal from the Superior Court in Pima County

No. CR20123108001

The Honorable Deborah Bernini, Judge

REVERSED AND REMANDED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Diane Leigh Hunt, Assistant Attorney General, Tucson

Counsel for Appellee

Steven R. Sonenberg, Interim Pima County Public Defender

By Erin K. Sutherland, Assistant Public Defender, Tucson

Counsel for Appellant
STATE v. ALMEIDA

Opinion of the Court

2

OPINION

Chief Judge Eckerstrom authored the opinion of the Court, in which 

Presiding Judge Miller and Judge Espinosa concurred.

E C K E R S T R O M, Chief Judge:

¶1 Following a jury trial, appellant Andy Almeida was 

convicted of aggravated assault with a deadly weapon and 

sentenced to a five-year term of imprisonment. On appeal, he 

contends the trial court committed reversible error by denying his 

requested jury instruction on the crime-prevention justification

afforded by A.R.S. § 13-411.

1 We agree and therefore reverse his 

conviction. Our disposition makes it unnecessary to address 

Almeida’s additional argument concerning his absence from part of 

the trial.

Factual and Procedural Background

¶2 When a trial court refuses a jury instruction, we view 

the evidence on appeal in the light most favorable to the proponent 

of the instruction. See State v. Nottingham, 231 Ariz. 21, ¶ 14, 289 

P.3d 949, 954 (App. 2012). Almeida’s trial concerned an incident of 

“road rage” and largely focused on the disputed question of who 

was the aggressor. The victim2 was driving by himself at the time of 

 

1Unless otherwise indicated, we cite the current versions of all 

statutes referred to in this opinion, which have not changed in 

material part since July 7, 2012, the date of the alleged offense.

2We use the term “victim” in conformity with the other 

driver’s status, as set forth in the charges against Almeida, pursuant 

to the Victims’ Bill of Rights and implementing laws. Ariz. Const. 

art. II, § 2.1(C); A.R.S. §§ 13-4401(19), 13-4402(A). In so doing, we do 

not presuppose any factual conclusion about the competing versions 

of events.
STATE v. ALMEIDA

Opinion of the Court

3

the encounter. Almeida was driving a car that included his fiancée

and their four-year-old son.

¶3 The victim testified he became upset when Almeida 

made a turn that cut him off. The victim slammed on his brakes and 

honked his horn. According to Almeida’s fiancée, the victim then 

began “tailgating” their car. As he drove beside it, the victim waved 

a gun in the air, causing the fiancée to become scared for herself and 

for her child, who was in the backseat. She told Almeida that the 

victim had a gun.

¶4 Less than thirty seconds after the victim had brandished 

the weapon, he pulled up to the passenger’s side of Almeida’s 

vehicle at a stop light. Almeida then stepped out of his car and 

stood beside it while holding his own gun. Once the light turned 

green, he got back in and drove away. The victim subsequently 

chased Almeida’s vehicle and ran two red lights during the pursuit.

¶5 While still following Almeida, the victim called 9-1-1 to 

report the vehicle to the police. A police dispatcher urged the victim 

to cease his pursuit, which the victim did not immediately do. The 

dispatcher then repeatedly instructed the victim to stay at a 

designated area in a shopping center so that a police officer could 

make contact with him there. The victim did not do so, instead

going to a different part of the shopping center before returning to 

meet with a waiting officer. When the officer searched the victim’s 

vehicle, he did not discover any weapon, and the victim denied 

having one.

¶6 The trial court instructed the jury on self-defense,

defense of others, and the defensive display of a firearm. The court 

denied Almeida’s request for an instruction on the justification of 

crime prevention under § 13-411. After sentencing, Almeida filed a 

delayed notice of appeal with the trial court’s permission pursuant 

to Rules 31.3 and 32.1(f), Ariz. R. Crim. P. We have jurisdiction over 

his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-

4033(A)(1).
STATE v. ALMEIDA

Opinion of the Court

4

Discussion

¶7 The instruction requested here correctly set forth the

essential components of the crime-prevention justification provided 

by § 13-411. The instruction informed the jury that the defendant’s 

threat or use of physical force or deadly physical force was justified 

if and to the extent that the defendant reasonably believed it was 

immediately necessary to prevent an aggravated assault. See § 13-

411(A). The instruction also informed the jury that the defendant is

presumed to have acted reasonably if he undertook his action to 

prevent what he reasonably believed to be an imminent or actual 

aggravated assault. See § 13-411(C). The accuracy of Almeida’s 

proposed instruction is not in dispute.

¶8 The trial court refused his crime-prevention instruction 

on the ground it was not supported by the evidence. On appeal, the 

state does not challenge Almeida’s argument that this conclusion 

was erroneous. Rather, the state maintains the ruling was proper 

because “the substance of th[e] instruction was adequately covered 

by the other justification-defense instructions given at trial.” The 

state alternatively asserts that any error in refusing the instruction 

was harmless. We address each issue in turn.

Evidentiary Support

¶9 “A party is entitled to an instruction on any theory 

reasonably supported by the evidence.” State v. Rodriguez, 192 Ariz. 

58, ¶ 16, 961 P.2d 1006, 1009 (1998). When making this assessment, 

the question is whether the evidence, viewed in the light most

favorable to the proponent, supports giving the instruction. State v. 

King, 225 Ariz. 87, ¶ 13, 235 P.3d 240, 243 (2010). The “slightest 

evidence” is sufficient. Id. ¶ 14; accord State v. Plew, 150 Ariz. 75, 78, 

722 P.2d 243, 246 (1986), disapproved on other grounds by King, 225 

Ariz. 87, ¶¶ 9, 12, 235 P.3d at 242, 243; State v. Johnson, 108 Ariz. 42, 

43, 492 P.2d 703, 704 (1972) (instruction required “if the evidence in 

the slightest degree tends to” show justification). Under this 

standard, a court does not weigh the evidence or resolve conflicts in 

it, see Plew, 150 Ariz. at 78, 722 P.2d at 246; Nottingham, 231 Ariz. 21, 

¶ 14, 289 P.3d at 954; the court merely decides whether the record 

provides evidence “upon which the jury could rationally sustain the 
STATE v. ALMEIDA

Opinion of the Court

5

defense.” State v. Strayhand, 184 Ariz. 571, 587-88, 911 P.2d 577, 593-

94 (App. 1995). In this respect, the sufficiency of the evidence for a 

jury instruction is similar to that for a verdict of guilt under Rule 20, 

Ariz. R. Crim. P. See State v. West, 226 Ariz. 559, ¶¶ 16, 18, 250 P.3d 

1188, 1191, 1192 (2011). Thus, while we generally review a court’s 

denial of a jury instruction for an abuse of discretion, see State v. 

Anderson, 210 Ariz. 327, ¶ 60, 111 P.3d 369, 385 (2005), we 

independently assess whether the evidence supported a justification 

instruction, because that is a question of law and involves no 

discretionary factual determination. Cf. West, 226 Ariz. 559, ¶ 15, 

250 P.3d at 1191 (clarifying de novo standard for reviewing 

sufficiency of evidence for conviction).

¶10 Section 13-411(A) provides that a person is justified in 

threatening deadly physical force if the person reasonably believes 

such force “is immediately necessary” to prevent the other person 

from committing any one of several enumerated crimes, including 

aggravated assault with a deadly weapon under A.R.S. 

§ 13-1204(A)(2). The evidence here favoring Almeida, if believed, 

would allow a rational jury to conclude that the victim was the 

aggressor and that Almeida reasonably believed his display of the

handgun at the traffic light was immediately necessary to prevent 

another aggravated assault against either himself or his passengers. 

Almeida’s version of the events described above came primarily 

from his statements to police shortly after the incident and from his 

fiancée’s testimony. The state presented evidence that challenged 

the credibility of those statements. In assessing the propriety of the

justification instruction, however, we must view the evidence in the 

light most favorable to Almeida. It is the task of a properly 

instructed jury to determine the comparative credibility of the 

witnesses. Based on the “slight[] evidence” of justification, the trial 

court correctly instructed the jury on theories of self-defense and 

defense of others. King, 225 Ariz. 87, ¶ 14, 235 P.3d at 243. The same 

evidence also supported the crime-prevention instruction Almeida 

requested pursuant to § 13-411.

¶11 The trial court acknowledged that its rulings on the 

justification instructions could not be harmonized. The court 

accounted for this conflict by suggesting that Almeida was not 
STATE v. ALMEIDA

Opinion of the Court

6

entitled to any justification instructions and that the court had 

simply provided them in an excess of caution. But such instructions

were required because the evidence tended to suggest “in the 

slightest degree” that Almeida was acting to prevent gun violence or 

yet another aggravated assault from being perpetrated by the victim 

during his ongoing episode of road rage. Johnson, 108 Ariz. at 43, 

492 P.2d at 704. That the evidence of justification was fairly 

debatable and contradicted by other evidence is irrelevant. See Plew, 

150 Ariz. at 78, 722 P.2d at 246. Almeida was entitled to the crimeprevention instruction because “the requisite modicum of evidence 

was presented.” Id.

¶12 The trial court additionally found that the 

crime-prevention statute, in particular, did not apply here because it 

employed “present tense” language, whereas Almeida was 

attempting to justify actions “after the fact” of the victim’s alleged 

aggravated assault. Neither the statutory language nor the facts of 

this case, however, provided grounds for refusing the instruction.

¶13 Throughout our code, “[w]ords in the present tense

include the future as well as the present.” A.R.S. § 1-214(A). 

Section 13-411(A), as noted, allows a defendant to assert a 

justification defense when the defendant’s act “is immediately 

necessary to prevent” the commission of an offense by another.

Prevention typically is accomplished by a preemptive act. See The 

American Heritage Dictionary 1397 (5th ed. 2011) (“prevent” means 

“[t]o keep from happening; avert”). “‘[T]he effect of the crime 

prevention privilege is to allow a person to use force in preventing a 

crime, rather than compel him to await the commission of the 

unlawful act.” Korzep v. Superior Court (Korzep II), 172 Ariz. 534, 537

n.2, 838 P.2d 1295, 1298 n.2 (App. 1991), quoting Note, Justification for 

the Use of Force in the Criminal Law, 13 Stan. L. Rev. 566, 568 (1961). A 

crime need not necessarily be “ongoing,” as the trial court stated, in 

order for this justification to become available to a defendant. Thus, 

the court could not deny the requested instruction here simply 

because the victim was not committing an aggravated assault at the 

moment Almeida acted to prevent such an offense. Cf. State v. 

Taylor, 169 Ariz. 121, 122, 123, 817 P.2d 488, 489, 490 (1991)
STATE v. ALMEIDA

Opinion of the Court

7

(defendant need not wait for violence or entry into home before 

taking defensive action).

¶14 The trial court correctly implied that a defendant is not 

entitled to a crime-prevention instruction when his act occurs after a 

crime has been fully completed, leaving nothing to prevent. E.g.,

Anderson, 210 Ariz. 327, ¶¶ 10, 62, 111 P.3d at 377, 386 (perpetrator 

beaten to death after sexual assault ended and victim had exited 

dwelling); State v. Ruggerio, 211 Ariz. 262, ¶¶ 2-4, 8, 12, 120 P.3d 690, 

691, 692, 693 (App. 2005) (child molester shot after leaving mobile 

home and being placed in separate room from victim). But when we 

view the evidence in the light most favorable to Almeida, as we 

must, see King, 225 Ariz. 87, ¶ 13, 235 P.3d at 243, the record does not 

present an after-the-fact justification.

¶15 The evidence supported an ongoing episode of road 

rage by the victim rather than a discrete aggravated assault with a 

firearm that had been fully resolved. Given the frenetic activity and 

volatile emotions that characterize an episode of road rage, a single 

incident might often involve multiple assaults with a weapon. See, 

e.g., State v. Klokic, 219 Ariz. 241, ¶¶ 2-4, 15, 196 P.3d 844, 845, 847 

(App. 2008). Road rage also can involve a car chase that endangers 

those in the targeted vehicle, along with anyone else on the 

roadway. E.g., State ex rel. Thomas v. Duncan, 216 Ariz. 260, ¶ 2, 165 

P.3d 238, 240 (App. 2007). And a person’s aggressive or violent use 

of a vehicle can render that vehicle itself a dangerous 

instrumentality for purposes of aggravated assault. See State v. 

Carrillo, 128 Ariz. 468, 470, 626 P.2d 1100, 1102 (App. 1980); see also 

A.R.S. §§ 13-105(12), 13-1204(A)(2).

¶16 According to the evidence provided by Almeida, the 

road rage incident in this case began when the victim aggressively 

tailgated Almeida’s vehicle, escalated as the victim threatened 

Almeida and his passengers with a handgun, and continued when 

the victim chased Almeida’s vehicle through at least two red lights.

Unlike in Anderson, 210 Ariz. 327, ¶ 62, 111 P.3d at 386, Almeida’s 

threat of deadly force was made when he and his passengers 

remained within a zone of danger, when the threat of another 

aggravated assault had not fully passed. The trial court therefore 
STATE v. ALMEIDA

Opinion of the Court

8

erred in concluding the crime-prevention instruction was not 

supported by the evidence.

Coverage by Other Instructions

¶17 A trial court is not required to give a requested jury 

instruction if its other instructions adequately cover the issue. State 

v. Garcia, 224 Ariz. 1, ¶ 75, 226 P.3d 370, 387 (2010). Here, the state 

contends the instructions concerning self-defense and defense of 

others adequately covered the issue of whether Almeida was 

justified in acting to prevent an aggravated assault, rendering the 

additional instruction on crime prevention unnecessary. Our case 

law, however, has long rejected this argument. See, e.g., State v. 

Korzep (Korzep I), 165 Ariz. 490, 492, 494 n.1, 799 P.2d 831, 833, 835

n.1 (1990); State v. Garfield, 208 Ariz. 275, ¶ 15, 92 P.3d 905, 909 (App. 

2004); State v. Hussain, 189 Ariz. 336, 339, 942 P.2d 1168, 1171 (App. 

1997).

¶18 There are two principal reasons why a crime-prevention 

instruction is appropriate even when instructions are provided for 

self-defense and defense of others. First, as Almeida points out, the 

statutes protect against different harms. Self-defense, A.R.S. § 13-

404, and defense of third persons, A.R.S. § 13-406, limit the use or 

threat of force to those situations in which it is reasonably and 

immediately necessary to repel force. Crime prevention, by contrast, 

has no such limitation. See § 13-411(A); Korzep I, 165 Ariz. at 492, 799 

P.2d at 833; Hussain, 189 Ariz. at 339, 942 P.2d at 1171. The 

justification is available to prevent any enumerated crime, several of 

which do not necessarily involve any physical force. Korzep II, 172 

Ariz. at 537, 838 P.2d at 1298; State v. Thomason, 162 Ariz. 363, 365, 

783 P.2d 809, 811 (App. 1989). This distinction is significant even for 

the crime of aggravated assault.

¶19 When a defendant acts to prevent a possible assault 

with a deadly weapon, the harm to be prevented under theories of 

self-defense or defense of others is the use of “unlawful physical 

force or deadly physical force.” § 13-406; see §§ 13-404(A), 

13-405(A)(2). Under a crime-prevention theory, the harm to be 

prevented can simply be the “apprehension of imminent physical 

injury,” A.R.S. § 13-1203(A)(2) (emphasis added), or insulting or 
STATE v. ALMEIDA

Opinion of the Court

9

provocative touching. See §§ 13-1203(A)(3), 13-1204(A)(2). Crime 

prevention is therefore a “more permissive” justification, Korzep I, 

165 Ariz. at 492, 799 P.2d at 833, and represents a “unique defense.”

Garfield, 208 Ariz. 275, ¶ 15, 92 P.3d at 909.

¶20 The second distinguishing feature of a crime-prevention 

instruction is that it alerts a jury to the presumption of 

reasonableness afforded by § 13-411(C). Korzep I, 165 Ariz. at 492, 

799 P.2d at 833; State v. Barraza, 209 Ariz. 441, n.3, 104 P.3d 172, 175

n.3 (App. 2005); Hussain, 189 Ariz. at 339, 942 P.2d at 1171. The 

statute provides that a defendant “is presumed to be acting 

reasonably . . . if [he] is acting to prevent what [he] reasonably 

believes is the imminent or actual commission of any of the offenses 

listed.” § 13-411(C). This presumption is unique to § 13-411 among 

the numerous justification statutes, and our supreme court has 

described it as perhaps the “most important” feature of a crimeprevention instruction. Korzep I, 165 Ariz. at 492, 799 P.2d at 833. 

Thus, when an instruction is refused under this statute, other 

instructions do not adequately cover the issue. Id. at 494 & n.1, 799 

P.2d at 835 & n.1.

¶21 Relying on State v. Martinez, 202 Ariz. 507, ¶ 17, 47 P.3d 

1145, 1148 (App. 2002), the state claims that no instruction was 

required here because the presumption of reasonableness “is 

rebuttable and vanishes when the state provides contradictory 

evidence,” as occurred below. We reject this argument. Martinez 

was decided under statutory amendments from 1997 that placed the 

burden of proving a justification defense on a criminal defendant, see 

1997 Ariz. Sess. Laws, ch. 136, § 4; Martinez, 202 Ariz. 507, ¶¶ 1, 10-

11, 47 P.3d at 1146, 1147; hence, much of the analysis in that case is 

irrelevant to the current justification statutes in chapter 4 of title 13.

Before 1997, as is the case again now, once a defendant presents a 

foundational showing of justification, the state must prove the 

defendant’s act was not justified. See 2006 Ariz. Sess. Laws, ch. 199, 

§ 2; Martinez, 202 Ariz. 507, ¶ 13, 47 P.3d at 1148. Moreover, even in 

Martinez we did not suggest that because the presumption is 

rebuttable, the jury should not be made aware of it. In fact, the jury 

in that case received an instruction on the presumption of 

reasonableness. 202 Ariz. 507, n.2, 47 P.3d at 1149 n.2; cf. Korzep II, 
STATE v. ALMEIDA

Opinion of the Court

10

172 Ariz. at 539-40, 542, 838 P.2d at 1300-01, 1303 (noting vanishing 

nature of presumption in context of rejecting argument for judgment 

of acquittal, but requiring grand jury to be instructed on 

presumption of reasonableness on remand).

¶22 No precedent of this court, therefore, supports the 

proposition that a trial court may deny a jury instruction on crime 

prevention or omit a reference to the presumption of reasonableness 

simply because the state has offered evidence that the defendant’s 

actions were unreasonable. Were we to hold otherwise, we would 

effectively nullify the presumption in § 13-411(C) and disregard our 

supreme court’s decision in Korzep I emphasizing its importance, 

which we cannot do as an intermediate appellate court. See State v. 

Sullivan, 205 Ariz. 285, ¶ 15, 69 P.3d 1006, 1009 (App. 2003).

¶23 Furthermore, although the state suggests its argument 

is limited to the “specific and unique facts of this case,” the 

argument it advances is, in fact, a legal one with potentially broad 

application. In every case where a crime-prevention justification is 

properly raised, the state has the burden of proving a lack of 

justification, see A.R.S. § 13-205(A); thus, if the state fails to present 

any evidence showing unreasonableness by the defendant, the result 

should be a judgment of acquittal. If the presumption simply 

vanished with contrary evidence, the jury would never need to hear 

of it in its final instructions.

Harmless Error

¶24 The state asserts that any error here was harmless. It 

specifically maintains that the evidence supporting Almeida’s 

justification theories was not credible. Yet the state’s argument on 

this point appears to be based on the contention we have already 

rejected regarding the vanishing presumption of reasonableness

under § 13-411(C).

¶25 Assuming arguendo harmless error review applies here, 

the state has failed to carry its burden of establishing, beyond a 

reasonable doubt, that the absence of the crime-prevention 

instruction neither contributed to nor affected the verdict. See State 

v. Valverde, 220 Ariz. 582, ¶ 11, 208 P.3d 233, 236 (2009). Indeed, our 
STATE v. ALMEIDA

Opinion of the Court

11

supreme court’s precedents suggest that the denial of a properly 

requested jury instruction under § 13-411 will usually be reversible 

error, given the prejudice that naturally flows from the refusal to 

allow a distinct legal theory of defense, see Korzep I, 165 Ariz. at 492, 

494 n.1, 799 P.2d at 833, 835 n.1, and from the failure to clarify the 

state’s burden of proof on that issue. See State v. Dorman, 167 Ariz. 

153, 154-55, 805 P.2d 386, 387-88 (1991); see also Hussain, 189 Ariz. at 

339, 942 P.2d at 1171.

¶26 Under the facts of this case, we cannot conclude that the 

absence of an instruction on § 13-411 and its presumption of 

reasonableness had no effect whatsoever on the verdict. The jury

here might have rejected Almeida’s claims of self-defense and 

defense of others because it believed, at the time he brandished his 

own weapon, either that the victim presented no immediate threat of 

physical force or that Almeida’s response to the threat of force was 

not reasonably proportionate. Had the crime-prevention instruction

been submitted, it would have clarified that Almeida was presumed 

to be acting reasonably if he had acted to prevent what he 

reasonably believed to be an imminent aggravated assault. See 

§ 13-411(C). Aggravated assault, as noted, does not require that any 

physical force be used or attempted, but only that a reasonable 

apprehension of imminent physical injury be created. See 

§§ 13-1203(A)(3), 13-1204(A)(2). Thus, had the jury believed the 

version of events reported by Almeida and his fiancée, it could have 

acquitted him under § 13-411 by finding, for example, that he acted 

to prevent his fiancée and small child from again being placed in 

fear by the victim displaying a weapon.

Disposition

¶27 For the foregoing reasons, the conviction and sentence 

are reversed and the case remanded for further proceedings.