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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GERALD RICHARDSON, Appellant.

No. 1 CA-CR 19-0429

Appeal from the Superior Court in Mohave County

No. S8015CR201801820

The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joshua C. Smith

Counsel for Appellee

Law Offices of Harriette P. Levitt, Tucson

By Harriette P. Levitt

Counsel for Appellant

FILED 12-15-2020
STATE v. RICHARDSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge Cynthia J. Bailey joined.

C A T T A N I, Judge:

¶1 Gerald Richardson appeals his conviction and sentence for 

one count of reckless manslaughter. He argues that the evidence was 

insufficient to support the jury’s verdict and that the court erred by 

precluding evidence of his character for peacefulness and by improperly 

instructing the jury. For reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Richardson lived in Golden Valley with his girlfriend and her

ten-year-old daughter, M.K. In October 2018, Jessica O. picked up M.K. to 

spend time with Jessica O.’s ten-year-old nephew, J.K. Neither Richardson 

nor his girlfriend were sure whether M.K. would return home that night or 

spend the night at Jessica O.’s home.

¶3 After Jessica O. and the children spent the day together, the 

three arrived at Richardson’s home around 9:30 p.m. to drop off M.K. Both 

Richardson and his girlfriend were asleep in the living room at the time. 

Jessica O. and the children approached the home and noticed that no lights 

were on. Richardson’s front door was unlocked, and Jessica O. tried to open 

the door slightly three times. After the second attempt, Richardson’s dogs 

began barking.

¶4 Richardson awoke and grabbed a gun that he kept near the 

couch on which he was sleeping. In what Richardson described as an 

attempt to scare away someone he perceived to be an intruder, he fired at 

the door. The bullet struck Jessica O. in the back, and she fell to the ground. 

When Richardson discovered that he had shot her, he called the police, who 

responded to the scene with paramedics. Jessica O. was transported to the 

hospital, but doctors were unable to revive her, and she was pronounced 

dead.
STATE v. RICHARDSON

Decision of the Court

3

¶5 Richardson was indicted on one count of reckless 

manslaughter for killing Jessica O., the victim.

1 After a four-day trial, the

jury found him guilty as charged. The jury also found that the State proved 

that the offense was dangerous and that the victim’s immediate family 

suffered emotional harm. The court sentenced Richardson to a 

presumptive term of 10.5 years in prison. Richardson timely appealed, and 

we have jurisdiction under A.R.S. § 13-4033(A)(1).

DISCUSSION

I. Sufficiency of the Evidence.

¶6 Richardson first argues that the evidence presented at trial 

was insufficient to support his conviction. We review the sufficiency of the 

evidence de novo. State v. Dunbar, 249 Ariz. 37, 47, ¶ 19 (App. 2020). “We 

will reverse a conviction only if no substantial evidence supports it.” State 

v. Morgan, 248 Ariz. 322, 325, ¶ 7 (App. 2020). “Substantial evidence is such 

proof that reasonable persons could accept as adequate and sufficient to 

support a conclusion of defendant’s guilt beyond a reasonable doubt.” Id.

(quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). “We resolve any conflicts 

in the evidence against the defendant and view all facts in the light most 

favorable to supporting the verdict.” State v. Pena, 235 Ariz. 277, 279, ¶ 5 

(2014).

¶7 As relevant here, “[a] person commits manslaughter by . . . 

[r]ecklessly causing the death of another person.” A.R.S. § 13-1103(A)(1). 

A person acts recklessly when the “person is aware of and consciously 

disregards a substantial and unjustifiable risk that the result will occur or 

that the circumstance exists.” A.R.S. § 13-105(10)(c).

¶8 Richardson specifically argues that no evidence in the record 

established that he consciously disregarded the risk of harm to another. We 

disagree.

1 Richardson was also indicted on two counts of child endangerment.

He subsequently moved the superior court to remand to the grand jury for 

a redetermination of probable cause, arguing that the State did not 

adequately instruct the grand jury on justification defenses. After the 

superior court denied the motion, Richardson petitioned this court for 

special action relief. We granted relief in part and ordered the superior 

court to dismiss the two endangerment counts and remand for a 

redetermination of probable cause. After the dismissal, the State did not, 

however, re-present the case to the grand jury.
STATE v. RICHARDSON

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¶9 A jury may infer from the evidence that a defendant 

consciously disregarded a risk of harm to others, and here, the evidence 

presented at trial supported such an inference. See State v. Carreon, 210 Ariz. 

54, 63, ¶¶ 40–43 (2005), supplemented by 211 Ariz. 32 (describing 

circumstantial evidence from which the jury could infer a conscious 

disregard of a substantial risk of harm). It was undisputed that Richardson 

shot and killed the victim after being startled awake that night. In his 

statement to an officer, Richardson stated that the room was entirely black 

at the time, and he did not see who he was firing at. Although Richardson 

stated that he was trying to “scare away” an intruder, he did so not by 

shouting a warning or firing a shot into the ground, but by firing through 

the door at an angle such that he hit the victim in the back. Further, it was 

only 9:30 p.m., and Richardson’s girlfriend testified that she believed 

Richardson was aware that her daughter had not yet returned home. The 

State was permitted to rely on this circumstantial evidence to establish a 

conscious disregard, and a reasonable jury could infer that Richardson 

knew at the time of the shooting that he was creating a substantial risk of 

harm. See State v. McGill, 213 Ariz. 147, 153, ¶ 19 (2006); State v. Miles, 211 

Ariz. 475, 482, ¶ 27 (App. 2005).

¶10 Moreover, Richardson’s counsel conceded during closing 

argument that Richardson committed “a reckless shooting”; Richardson’s 

defense was that the shooting was justified. Richardson’s argument on 

appeal that he “merely reacted to an intruder coming into his home when 

he had no reason to believe that anyone was supposed to come to his house 

after he had retired for the night” conflates the elements of recklessness 

with those of his justification defense. See State ex rel. Thomas v. Duncan, 216 

Ariz. 260, 265, ¶ 17 (App. 2007) (“Being ‘aware’ of the risk and the 

‘justifiability’ of the risk are also separate and distinct inquiries.”).

¶11 In sum, substantial evidence supports the jury’s finding that 

Richardson recklessly caused the victim’s death.

II. Character for Peacefulness.

¶12 Richardson next argues that the superior court erred by 

precluding evidence of his character for peacefulness. We review the 

exclusion of evidence for an abuse of discretion. State v. Fuentes, 247 Ariz. 

516, 524, ¶ 27 (App. 2019). A defendant may offer evidence of his or her 

good character trait as substantive evidence that he or she did not commit 

the crime. State v. Rhodes, 219 Ariz. 476, 478, ¶ 10 (App. 2008). However, 

that character trait must be relevant to the crime charged. See Ariz. R. Evid. 

402. Accordingly, evidence of a defendant’s good character trait will be 
STATE v. RICHARDSON

Decision of the Court

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admissible only if it pertains to a trait involved in the crime. Rhodes, 219 

Ariz. at 479, ¶ 10.

¶13 Richardson argues that because he was charged with reckless 

manslaughter, he was entitled to present evidence that he was generally a 

nonviolent person to prove his justification defense and negate the State’s 

claim he was reckless.

¶14 As discussed above, a defendant is guilty of manslaughter if 

he or she recklessly causes the death of another. A.R.S. § 13-1103(A)(1). 

Richardson consistently admitted that he shot and killed the victim. His 

defense was that shooting the victim was justified under the circumstances, 

and he sought to introduce evidence of his nonviolent character to establish 

that recklessly causing the death of another was out of character. But a 

personal character for peacefulness was not relevant to address 

justification, because justification is assessed based on what a reasonable 

person would have done under similar circumstances. See Cespedes v. Lee, 

243 Ariz. 46, 50, ¶ 15 (2017) (“Generally, an objective standard is used in 

determining whether a defendant’s use of force was reasonable.”). Thus, 

Richardson’s alleged peaceful character was not relevant to the jury’s

determination of how a reasonable person would have responded under 

the circumstances. See Ariz. R. Evid. 401(a).

III. Jury Instructions.

¶15 Finally, Richardson argues that the court improperly 

instructed the jury that the victim was an invitee. We review the superior 

court’s decision whether to give a jury instruction for an abuse of discretion.

Dunbar, 249 Ariz. at 45, ¶ 30. A party is entitled to a jury instruction 

reasonably supported by the “slightest evidence.” State v. Almeida, 238 

Ariz. 77, 79, ¶ 9 (App. 2015).

¶16 Richardson’s argument relies on a mischaracterization of the 

superior court’s instruction. Contrary to Richardson’s assertions, the

superior court did not “h[o]ld that [the victim] was an invitee,” nor did the 

court “essentially instruct[] the jury that [the victim] was an invitee.” 

Instead, the court instructed the jury:

The defendant is presumed to reasonably believe that the 

threat or use of physical force or deadly force is immediately 

necessary if the defendant knows or has reason to believe that 

the person against whom physical force or deadly force is 

threatened or used is unlawfully or forcefully entering or has 
STATE v. RICHARDSON

Decision of the Court

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unlawfully or forcefully entered and is present in the 

defendant’s residential structure.

For the purposes of justification, a person who is unlawfully 

or forcefully entering or who has unlawfully or forcefully 

entered and is present in a residential structure is presumed 

to pose an imminent threat of unlawful deadly harm to any 

person who is in the residential structure.

These presumptions do not apply if:

The person against whom the physical force or deadly 

physical force was threatened or used had the right to be in or 

was a lawful resident of the residential structure, including an 

invitee.

¶17 Here, the evidence presented at trial supported the invitee 

instruction, namely, Richardson’s girlfriend’s testimony that the victim and 

J.K. were always welcome at the house. The jury could have relied on that 

statement, along with M.K.’s testimony that the victim had dropped her off 

at the home in the past and that the door was unlocked that night when it 

would usually be locked, to conclude the victim was an invitee.

¶18 Moreover, the invitee status of the victim and J.K. 

notwithstanding, the instruction at issue did not preclude Richardson from 

arguing that he did not know who was outside the door and that his 

conduct was reasonable and justified under the circumstances presented. 

The instruction only precluded Richardson from asserting that there was a 

presumption that his conduct was reasonable. Accordingly, the court did 

not err or otherwise deny Richardson a right essential to his defense by 

instructing the jury regarding the effect of an invitee attempting to enter the 

residence.

CONCLUSION

¶19 For the foregoing reasons, we affirm.