NOTICE: NOT FOR PUBLICATION.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.

GORDON ALLEN BENSON, Appellant.

No. 1 CA-CR 13-0454

Appeal from the Superior Court in Maricopa County

No. CR2011-140907-001

The Honorable Bruce R. Cohen, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Jeffrey L. Force

Counsel for Appellant
STATE v. BENSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.

D O W N I E, Judge:

¶1 Gordon Allen Benson appeals his conviction for 

manslaughter, arguing the superior court erred by refusing to instruct the 

jury on the crime-prevention defense under Arizona Revised Statutes 

(“A.R.S.”) § 13-411. We agree and therefore reverse Benson’s conviction 

and remand for a new trial. 

FACTS AND PROCEDURAL HISTORY1

¶2 Benson fatally stabbed F.B. after being awakened by F.B. 

“ferocious[ly]” banging on, and then bursting through, the door to the room 

Benson’s girlfriend rented from F.B., yelling “mother fucker,” and 

screaming for Benson to get out. Benson claimed self-defense and testified 

he was “terrified” that F.B., who was larger and younger than him, would

seriously injure or kill him if he did not “stop him.” A “very high” level of 

methamphetamine was present in F.B.’s bloodstream at the time of his 

death — a level the State’s toxicologist testified could cause someone to 

engage in a violent outburst. 

¶3 The jury convicted Benson of manslaughter as a lesserincluded offense of the charged crime of second-degree murder and found 

it to be a dangerous offense. The court sentenced Benson to a mitigated 

term of eight years in prison. Benson filed a timely notice of appeal. We 

have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 13-4031, and 

13-4033(A). 

DISCUSSION

¶4 The trial court instructed the jury regarding the use of 

physical force and deadly physical force in self-defense pursuant to A.R.S. 

§§ 13-404 and 13-405 and specifically instructed jurors that a person “may 

 

1 We view the evidence in the light most favorable to Benson — the 

proponent of the jury instruction. See State v. King, 225 Ariz. 87, 90, ¶ 13, 

235 P.3d 240, 243 (2010).
STATE v. BENSON

Decision of the Court

3

use deadly physical force in self defense only to protect against another’s 

use or apparent, attempted use or threatened use of deadly physical force,”

if and to the extent a reasonable person in his situation would have believed 

such force was immediately necessary for self-defense. The court declined 

to instruct on the crime-prevention defense under A.R.S. § 13-411, which 

offers justification for the use of “both physical force and deadly physical 

force against another to the extent the person reasonably believes physical 

force or deadly physical force is immediately necessary to prevent the other 

person’s commission of” enumerated offenses, including aggravated 

assault causing serious physical injury. A.R.S. § 13-411(A). The court 

reasoned that the self-defense instructions adequately covered Benson’s 

defense.

¶5 The State does not contend the crime-prevention instruction 

was legally unavailable to Benson. Indeed, it acknowledges that 2006 

amendments to A.R.S. § 13-411 broadened the statute’s application and 

concedes Benson “arguably” had a right to be in F.B.’s home as a guest of a 

resident. See A.R.S. § 13-411(D) (“This section includes the use or 

threatened use of physical force or deadly physical force in a person’s home, 

residence, place of business, land the person owns or leases, conveyance of 

any kind, or any other place in this state where a person has a right to be.”) 

(emphasis added). The State’s position in this appeal is that the trial 

evidence did not support a crime-prevention instruction and, to the extent

we conclude otherwise, the State asserts any error in refusing the 

instruction was harmless. 

¶6 We review the refusal to give a jury instruction for abuse of 

discretion. State ex rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8, 123 P.3d 

662, 665 (2005). A defendant is entitled to a crime-prevention instruction if 

it is supported by the “slightest evidence.” State v. Korzep, 165 Ariz. 490, 

494, 799 P.2d 831, 835 (1990). 

¶7 Benson testified that he believed F.B. was going to kill or 

severely injure him if he did not take immediate action to stop him. He told 

jurors he feared he would have his “head beaten” or “tore off or something 

stuck through my eye” and that F.B. “was just going to hurt me until there 

was nothing, I mean until he couldn’t.” Benson’s testimony, coupled with 

evidence about the high level of methamphetamine in F.B.’s system, was 

sufficient to supply the “slightest evidence” warranting the crimeprevention instruction. See State v. Hussain, 189 Ariz. 336, 338, 942 P.2d 

1168, 1170 (App. 1997) (holding defendant’s version of events provided the 

requisite “slightest evidence” to support crime-prevention defense 

instruction).
STATE v. BENSON

Decision of the Court

4

¶8 According to the State, Benson’s belief F.B. was going to kill 

or severely injure him was unreasonable. But whether that belief was 

reasonable or not was a question for the jury to resolve in determining 

whether the conduct was justified. See A.R.S. § 13-411(A) and (C); State v. 

King, 225 Ariz. 87, 91, ¶ 18, 235 P.3d 240, 244 (2010) (evidence defendant 

acted in response to being hit in head by bottle thrown by victim entitled 

him to self-defense instruction in murder trial; issue of whether response 

was proportionate to threat was for the jury).

¶9 We are also unpersuaded by the State’s argument that the

failure to instruct on the crime-prevention defense was harmless error. An 

error is harmless if the State demonstrates, beyond a reasonable doubt, that 

the error did not contribute to or affect the verdict. See State v. Henderson, 

210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005). 

¶10 A.R.S. § 13–411 offers a defendant broader protection than 

A.R.S. §§ 13-404 and 13-405. See State v. Garfield, 208 Ariz. 275, 279, ¶ 15, 92 

P.3d 905, 909 (App. 2004). “[T]he only limitation on the use of deadly force 

under § 13–411 is the reasonableness of the response,” whereas “the other 

justification defenses require an immediate threat to personal safety before 

deadly force may be used.” Korzep, 165 Ariz. at 492, 799 P.2d at 833; see also 

Hussain, 189 Ariz. at 339, 942 P.2d at 1171 (A.R.S. § 13-411 “permits a person 

to employ deadly physical force ‘if and to the extent the person reasonably 

believes [it] is immediately necessary’ to prevent the commission of any of 

several enumerated crimes . . . rather than only in response to another 

person’s use or attempted use of unlawful deadly physical force.”). 

Additionally, A.R.S. § 13-411(C) establishes a presumption that a person 

acted reasonably if he acted “to prevent what the person reasonably 

believes is the imminent or actual commission” of enumerated crimes, 

including aggravated assault. No such presumption exists under §§ 13-404 

and 13-405.

¶11 The State contends the presumption established by 

§ 13-411(C) has essentially been rendered meaningless by statutory changes 

that now place the burden on the State to prove beyond a reasonable doubt 

that a defendant did not act with justification. See A.R.S. § 13-205. But as 

noted supra, the protections of § 13-411 extend beyond this presumption. 

Moreover, even after amending A.R.S. § 13-205(A), the legislature chose to 

retain language specifically stating that “[t]his section does not affect the 

presumption contained in § 13-411, subsection C.” A.R.S. § 13-205(B). See, 

e.g., Tucson v. Clear Channel Outdoor, 209 Ariz. 544, 553, 105 P.3d 1163, 1172 

(2005) (courts do not interpret statutes to contain useless provisions unless 
STATE v. BENSON

Decision of the Court

5

no other construction is possible); Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80

P.3d 269, 271 (2003) (courts must give effect to each word of the statute). 

¶12 We cannot say beyond a reasonable doubt that the protections 

offered by § 13-411 would not have caused a jury properly instructed about 

the crime-prevention defense to conclude that Benson was justified in 

stabbing F.B. to prevent an aggravated assault. The State has not carried its 

burden of establishing harmless error. 

CONCLUSION

¶13 For the foregoing reasons, we reverse Benson’s conviction 

and remand for a new trial.