NOTICE: NOT FOR PUBLICATION.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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA , Appell ee ,

v.

GORDON ALLEN BENSON , Appell ant

.

N o . 1 CA

- C R 13

- 0 454

Appeal from the Superior Court in Maricopa County

No. C R2011

- 140907

- 001 The Honorable Bruce R. Cohen
, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General ’s Office , Phoenix By Linley Wilson Counsel for Appell ee
Maricopa County Public Defender ’s Office
, Phoenix By Jeffrey L. Force C ounsel for Appell antSTATE 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 c ourt erred by refus ing t o 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 HISTORY 1

¶2 Benson fatally stabbed F .B. after being aw akened by F.B. “ferocious[ly]” banging on , and then bursting through
, the door t o the room Benson’s girlfriend rented from F.B. , yelling “mother fucker,” and screaming for Benson to get out

. B enson 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 blood stream at the time of his death

— a level the S tate’s toxicologist testified cou ld cause someone to engage in a violent outburst.

¶3 T he jury convicted Benson of manslaughter as a lesser

included offense of the charged crime of second

- degree murder and found it to be a dangerous offense

. T he court sentenced Benson to a mitigated term of eight years in prison. Benson filed a timely notice of appeal

. W e 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 regardin g the use of physical force and deadly physical force in self

- defense pursuant to A.R.S. §§ 13

- 404 and 13

- 405 and speci fically 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 i n 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. Th e court declined to instruct on t he 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 ot her 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 a dequately 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 residen t. 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 sta te where a person has a right to be .”) ( e mphasis added). The State ’s position in this appeal is that t he trial

e vidence did not support a crime

- prevention instruction and
, to the exten t 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 testi fied 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 juror s h e fe ared 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 nothi ng, I mean until he couldn’t.” Benson’s testimony , coupled with evidence about th e high level of methamphetamine in F.B. ’s system
, was sufficient to supply the “slightest evidence” warranting the crime

prevention 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 w hether that belief was reasonable or not was a question for the jury to resolve in determining whether the conduct was justifie d. S ee 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 un persuaded by the State’s argument that the failure to instruct on the crime

- prevention defense w as harmless e rror . An

erro r 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 defendan t 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 dead ly 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 dead ly 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 as sault. 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 unlessSTATE 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 of fered by § 13

- 411 w ould 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.