NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ERIK KARL OMAN, Appellant.

No. 1 CA-CR 12-0298

Appeal from the Superior Court in Maricopa County

No. CR2010-166177-001

The Honorable Robert L. Gottsfield, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Adriana M. Zick

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Cory Engle

Counsel for Appellant

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
STATE v. OMAN

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2

G E M M I L L, Judge,

¶1 Erik Karl Oman appeals his conviction and sentence for 

aggravated assault. He challenges the trial court’s order precluding 

evidence of specific examples of his peaceful character and claims the 

court erred in instructing the jury on the defensive display of a firearm. 

Finding no error, we affirm.

BACKGROUND

¶2 We review the facts in the light most favorable to sustaining 

the jury’s verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 

1189 (1989).

¶3 This case arises out of a road rage incident that occurred in 

the evening of December 17, 2010. P.N. was waiting at a red light directly 

behind Oman who was driving the first car in the lane. Oman was turned 

around in his seat tending to his dogs in the back when the traffic signal 

changed. P.N. “beeped” his horn to get Oman’s attention, and the two 

proceeded to turn left.

¶4 As they then drove alongside each other, Oman was 

gesturing to P.N., and he swerved into P.N.’s lane. After stopping next to 

each other at another red light, Oman, who was on P.N.’s passenger side, 

began yelling at P.N. that he “has his hand on his gun, and he’s going to 

shoot [P.N.].”

¶5 The two men continued to “argu[e]” before Oman got out of 

his vehicle, reached through P.N.’s front passenger window and pointed a 

handgun at P.N.’s head. Oman tried to open the locked passenger door, 

and P.N. saw the gun “in my face . . . pointed right at me.” Fearing for his 

life because he thought Oman was going to shoot him, P.N. took his foot 

off the brake so the forward motion of his truck would move Oman’s 

hand and alter the direction of the pointed weapon. P.N. proceeded into 

the intersection against the red light, turned right, and Oman ran 

alongside the moving vehicle saying, “My finger’s on the trigger. I’m 

going to shoot you.” P.N. sped away and both he and Oman called 911. 

After police interviewed P.N. and Oman, Officer Bradbury arrested 

Oman.

¶6 The State charged Oman with aggravated assault, a class 

three dangerous felony, alleging he used his gun to intentionally place 

P.N. in reasonable apprehension of imminent physical injury. See Ariz.

Rev. Stat. (“A.R.S.”) sections 13-1203(A)(2), -1204(A)(2). At trial, Oman
STATE v. OMAN

Decision of the Court

3

testified he feared for his life when P.N. swerved toward him and “very 

aggressively” cut him off. Oman denied pointing his gun at P.N. and 

claimed he only told P.N. that he “carried” after he exited his vehicle at 

the stoplight to talk to P.N. in an effort to “diffuse the situation.”1 Oman

testified that, when someone is threatening him and he fears his life is in 

danger, it was his “practice . . . to approach them to try to solve the 

problem . . . .” To support this assertion, Oman sought to offer testimony 

from two co-workers regarding specific incidents in which Oman

peacefully talked to others with whom he was having a dispute to prevent

escalating the issue. The court sustained the State’s objection under 

Arizona Rule of Evidence (“Rule”) 405(b). After the close of evidence, 

Oman requested the court amend its jury instruction regarding defensive 

display of a firearm under A.R.S. § 13-421. The court ultimately denied 

the requested instruction.

¶7 The jury found Oman guilty as charged, and the court 

sentenced him to a mitigated term of five years in prison.2 Oman

unsuccessfully moved for a new trial and a judgment of aquittal. This 

timely appeal followed, and we have jurisdiction pursuant to A.R.S. §§ 12-

120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

I. Testimony Regarding Specific Incidents of Peacefulness

¶8 Oman argues the superior court’s preclusion of evidence 

regarding specific instances of his peaceful resolution of conflicts violated 

his constitutional right to present a complete defense. He has failed, 

however, to show the superior court abused its discretion on precluding 

this evidence. See State v. Ayala, 178 Ariz. 385, 387, 873 P.2d 1307, 1309 

(App. 1994) (“Decisions on the admission and exclusion of evidence are 

left to the sound discretion of the trial court and will be reversed on 

appeal only when they constitute a clear, prejudicial abuse of discretion.”)

(internal citations and quotations omitted).

 1 Oman testified P.N. possibly saw the handgun holstered on Oman’s hip 

under his jacket.

2 According to the parties, Defendant was released from prison after the 

Governor commuted his sentence on March 7, 2013.
STATE v. OMAN

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¶9 “A defendant’s right to present relevant evidence is not 

unlimited, but rather is subject to reasonable restrictions,” including 

application of reasonable rules governing the admissibility of evidence. 

United States v. Scheffer, 523 U.S. 303, 308 (1998); see also State v. Dickens, 187 

Ariz. 1, 14, 926 P.2d 468, 481 (1996) (“Although a defendant has a 

fundamental constitutional right to . . . present a defense, the right is 

limited to the presentation of matters admissible under ordinary 

evidentiary rules . . . .”) abrogated on other grounds by State v. Ferrero, 229 

Ariz. 239, 274 P.3d 509 (2012).

¶10 As relevant here, Rule 405, entitled “Methods of Proving 

Character,” provides:

(a) By reputation or opinion. When evidence of a person’s 

character or character trait is admissible, it may be proved 

by testimony about the person’s reputation or by testimony 

in the form of an opinion. . . . 

(b) By specific instances of conduct. When a person’s 

character or character trait is an essential element of a charge 

. . . the character or trait may also be proved by relevant 

specific instances of the person’s conduct. 

¶11 In conformance with Rule 405(a), the jury heard evidence of 

Oman’s peaceful character based on his own testimony in addition to the 

opinion and reputation testimony provided by his co-workers. Oman

does not argue that his character or trait of character was an essential 

element of the charge, and therefore specific instances of his peaceful 

resolution of other disputes were not admissible under Rule 405(b). 

Finally, Oman presented the following justification defense at trial:

The defensive display of a firearm by a person against 

another is justified when and to the extent a reasonable 

person would believe that physical force is immediately 

necessary to protect himself against the use or attempted use 

of unlawful physical force or deadly physical force. 

A.R.S. § 13-421(A). Oman’s peaceful character was not material to 

determining whether he was objectively reasonable in displaying his

handgun to P.N., meaning his character or trait of character for 

peacefulness was not an essential element of his justification defense. 
STATE v. OMAN

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¶12 The court did not abuse its discretion in precluding evidence

of specific instances of Oman’s peacefulness under Rule 405, meaning 

Oman was not denied his right to present a complete defense.

II. Jury Instruction Regarding Justification

¶13 After the close of evidence, Oman requested the following

jury instruction:

The defensive display of a firearm justification defense is 

applied in the following manner: If you find a gun was 

displayed by the defendant you then must determine 

whether the defendant was justified under the circumstances 

in doing so. If you determine he was justified that is a complete 

defense to the charge of aggravated assault and any lesser 

included offenses. If you determine he was not justified, the 

defensive display of a firearm justification defense does not 

apply.

(Emphasis added.)

¶14 The trial court ultimately rejected that instruction and 

instead instructed the jury, in relevant part, as follows:

Justification: Defensive Display of a Firearm

The defendant is justified in defensively displaying a firearm 

if a reasonable person would have believed that physical 

force was immediately necessary to protect himself against 

the use or attempted use of unlawful physical force or 

deadly physical force.

The defendant was not justified in displaying a firearm if:

The defendant . . . [u]ses a firearm during the 

commission of any criminal act that results in . . . 

any criminal use of a deadly weapon or dangerous 

instrument. See instruction no. 15 for elements 

of the aggravated assault alleged in this case.

Defensive display of a firearm includes:

1. Verbally informing another person that the 

person possesses or has available a firearm.
STATE v. OMAN

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2. Exposing or displaying a firearm in a 

manner that a reasonable person would

understand was meant to protect the person 

against another's use or attempted use of

unlawful physical force or deadly physical 

force.

3. Placing the person's hand on a firearm while 

the firearm is contained in a pocket, purse or 

other means of containment or transport. 

(Emphasis added.) Oman contends that the instruction given was 

improper.

¶15 We apply an abuse of discretion standard when reviewing a trial 

court’s decision regarding jury instructions. State v. Cox, 214 Ariz. 518, 

521, ¶ 16, 155 P.3d 357, 360 (App. 2007). A defendant is entitled to a jury 

instruction on any theory reasonably supported by the evidence. State v. 

Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). The purpose 

of jury instructions is to inform the jury of the applicable law. State v. 

Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). Thus, a trial 

court acts within its discretion when it refuses an instruction that lacks a 

factual or legal basis. State v. Vandever, 211 Ariz. 206, 208, ¶ 7, 119 P.3d 

473, 475 (App. 2005). A set of instructions need not be faultless. The 

instructions, however, must not mislead the jury and must give the jury 

an understanding of the issues. See id.

¶16 Oman contended at trial that he was justified in defensively 

displaying his handgun to protect himself against P.N.’s aggressive 

driving. However, the statute that authorizes this justification expressly 

“does not apply to a person who . . . [u]ses a firearm during the 

commission of a serious offense as defined in § 13-706.” A.R.S. § 13-

421(B)(2). Section 13-706 defines “serious offense” as including 

“[a]ggravated assault . . . involving the . . . threatening exhibition of a 

deadly weapon[.]” A.R.S. § 13-706(F)(1)(d). “Deadly weapon,” in turn 

“means anything designed for lethal use, including a firearm,” A.R.S. § 13-

105(15), and a firearm includes “any loaded or unloaded handgun . . .

designed to . . . expel a projectile[.]” A.R.S. § 13-105(19).

¶17 Here, the instruction given properly reflects the concept contained 

in § 13-421 that a person who has committed aggravated assault by using 

a firearm in a threatening manner may not, under Arizona law, assert a 

justification defense on the theory he or she was merely defensively 
STATE v. OMAN

Decision of the Court

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displaying the weapon. Pursuant to the court’s instruction and based on 

the trial evidence, the jury could have returned a not-guilty verdict had it 

unanimously believed Oman’s testimony and concluded he defensively 

displayed his handgun to P.N. in response to the latter’s unlawful use of 

force against him. Alternatively, by applying the evidence to the same 

instruction, the jury could (and apparently did) conclude Oman used his 

gun in a threatening manner thereby resulting in an assault of P.N. and

precluding Oman from the defensive display justification defense. 

¶18 The instruction requested by Oman, on the other hand, expressly 

instructed the jury that defensive display of a firearm can be a “complete 

defense to the charge of aggravated assault,” which directly contradicts § 

13-421. Consequently, because the instruction given to the jury correctly 

reflected applicable state law by closely tracking the language in § 13-421,3

 3 The complete text of A.R.S. § 13-421 reads as follows:

A. The defensive display of a firearm by a person against 

another is justified when and to the extent a reasonable 

person would believe that physical force is immediately 

necessary to protect himself against the use or attempted use 

of unlawful physical force or deadly physical force.

B. This section does not apply to a person who:

1. Intentionally provokes another person to use 

or attempt to use unlawful physical force.

2. Uses a firearm during the commission of a 

serious offense as defined in § 13-706 or violent 

crime as defined in § 13-901.03.

C. This section does not require the defensive display of a 

firearm before the use of physical force or the threat of 

physical force by a person who is otherwise justified in the 

use or threatened use of physical force.

D. For the purposes of this section, “defensive display of a 

firearm” includes:

1. Verbally informing another person that the 

person possesses or has available a firearm.
STATE v. OMAN

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and Oman’s requested instruction did not correctly state the law, the court 

did not abuse its discretion in instructing the jury.

CONCLUSION

¶19 Oman’s conviction and sentence are affirmed. 

 

2. Exposing or displaying a firearm in a 

manner that a reasonable person would 

understand was meant to protect the person 

against another's use or attempted use of 

unlawful physical force or deadly physical 

force.

3. Placing the person's hand on a firearm while 

the firearm is contained in a pocket, purse or 

other means of containment or transport.