IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CHRISTEPHER E. LUA, Appellant.

No. 1 CA-CR 12-0819

Appeal from the Superior Court in Mohave County

No. S8015CR20100834

The Honorable Steven F. Conn, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Linley Wilson

Counsel for Appellee

Mohave County Legal Advocate, Kingman

By Jill L. Evans

Counsel for Appellant

OPINION

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

Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.
STATE v. LUA

Opinion of the Court

2

D O W N I E, Judge:

¶1 Christepher Lua appeals his convictions and sentences for 

attempted manslaughter, aggravated assault, misconduct involving 

weapons, and assisting a criminal street gang. He raises several issues, all 

but one of which we resolve in a separate memorandum decision 

pursuant to Arizona Rule of Criminal Procedure 31.26. In this opinion, we 

address Lua’s contention he was improperly convicted of a crime that is 

not a lesser-included offense of the charged offense. For reasons that 

follow, we hold that so-called “provocation manslaughter,” see A.R.S. 

§ 13-1103(A)(2), is a lesser-included offense of second degree murder. We 

therefore affirm Lua’s attempted manslaughter convictions. 

FACTS AND PROCEDURAL HISTORY1

¶2 D.G. and D.C. were leaving a convenience store when Lua

and other men gathered around a nearby car began verbally taunting 

them. Events progressed quickly to a physical altercation. D.G. and D.C. 

returned to their vehicle. After hearing someone yell “coward,” D.C. 

gestured as if he were grabbing something from his car and ran back 

toward the other vehicle, where Lua was now in the driver’s seat. D.C.’s 

hand was behind his back as he approached. When D.C. was 

approximately two feet away, Lua shot him. D.G. then ran toward Lua 

and began grabbing his arm and hitting him. Lua shot D.G. before 

fleeing. During a police interview, Lua admitted shooting D.C. several 

times but said that he did so because he believed D.C. had a gun and “was 

going to shoot us.” 

¶3 Lua was originally charged with two counts of attempted 

first degree murder (counts 1 and 2); two counts of aggravated assault

(counts 3 and 4); and one count of assisting a criminal street gang (count 

5). His first trial ended in a mistrial. The State subsequently charged Lua 

by separate indictment with one count of misconduct involving weapons 

arising from the same incident and successfully moved to join the charges 

under Rule 13.3. The trial court also granted the State’s unopposed

motion to amend counts 1 and 2 to reduce the charges to attempted 

second degree murder.

 

1 We view the trial evidence in the light most favorable to sustaining 

the jury’s verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 

769 (App. 2007). 
STATE v. LUA

Opinion of the Court

3

¶4 At the second trial, the court instructed the jury over Lua’s 

objection regarding the offense of attempted manslaughter upon a sudden 

quarrel or heat of passion resulting from adequate provocation by the 

victim (“provocation manslaughter”), which the court ruled was a lesserincluded offense of attempted second degree murder. The jury found Lua 

guilty of two counts of attempted manslaughter, two counts of aggravated 

assault, one count of assisting a criminal street gang, and one count of 

misconduct involving weapons. The court sentenced him to concurrent

and consecutive prison terms. 

¶5 Lua timely appealed. We have jurisdiction under Article VI, 

Section 9, of the Arizona Constitution and A.R.S. §§ 12–120.21(A)(1), 

13–4031, and –4033(A)(1).

DISCUSSION

¶6 We review de novo whether a crime is a lesser-included 

offense of a charged offense.2 State v. Cheramie, 218 Ariz. 447, 448, ¶¶ 6-8,

189 P.3d 374, 375 (2008). Under the “elements test,” a lesser-included 

offense is one that is comprised solely of some, but not all, elements of the 

greater offense, such that it is impossible to commit the charged crime 

without also committing the lesser one. State v. Hines, 232 Ariz. 607, 610, ¶ 

10, 307 P.3d 1034, 1037 (App. 2013). 

¶7 The trial court instructed jurors that the offense of attempted 

second degree murder includes “the less serious crime of Attempted 

Manslaughter.” It further instructed: 

The State may prove Attempted Manslaughter, but fail to 

prove the more serious crime of Attempted Second Degree 

Murder. You are permitted to find the Defendant guilty of 

the less serious crime of Attempted Manslaughter if:

1. You determine unanimously that the evidence does not 

show beyond a reasonable doubt that the Defendant is guilty 

 

2 The State contends our review is limited to fundamental error 

because Lua’s trial objections were inadequate to trigger harmless error 

review. We disagree. Lua objected to the lesser-included offense 

instruction based on “the interjection of the extra element,” which the trial 

court clearly understood as questioning whether provocation 

manslaughter is a lesser-included offense of second degree murder. 
STATE v. LUA

Opinion of the Court

4

of Attempted Second Degree Murder or if after reasonable 

efforts you cannot agree unanimously whether to acquit or 

convict on that charge; AND 

2. You determine unanimously that the evidence does show 

beyond a reasonable doubt that the Defendant is guilty of 

Attempted Manslaughter. 

The difference between Attempted Second Degree Murder 

and Attempted Manslaughter is that Attempted 

Manslaughter requires that the Defendant attempted to 

commit the crime of Manslaughter rather than Second 

Degree Murder. 

The crime of Manslaughter has the following elements:

1. The Defendant committed Second Degree Murder; AND 

2. The Defendant did so upon a sudden quarrel or heat of 

passion resulting from adequate provocation by the victim. 

The court also instructed jurors regarding second degree murder, stating:

The crime of Second Degree Murder has the following 

elements:

1. The Defendant caused the death of another person; AND

2. The Defendant intended or knew that his conduct would 

cause death. 

Lua does not challenge the content of these jury instructions; we therefore 

do not address their substantive adequacy or accuracy. 

¶8 According to Lua, Peak v. Acuna, 203 Ariz. 83, 84-85, ¶ 6, 50 

P.3d 833, 834-35 (2002), stands for the proposition that provocation 

manslaughter is not a lesser-included offense of second degree murder. 

We disagree. The defendant in Peak was charged with the first degree 

murder of her husband. 203 Ariz. at 84, ¶ 2, 50 P.3d at 834. At trial, jurors 

in Peak were instructed regarding first degree murder, second degree 

murder, and provocation manslaughter. Id. The jury acquitted Peak of 

first degree murder and provocation manslaughter but convicted her of 

second degree murder. Id. The superior court ordered a new trial, and 

the State sought special action review. Id. at ¶¶ 3-4. The Arizona 
STATE v. LUA

Opinion of the Court

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Supreme Court rejected Peak’s contention “that because [provocation] 

manslaughter is a lesser-included offense of second-degree murder, her 

acquittal of manslaughter bars the state from retrying her for seconddegree murder.” Id. at ¶ 5. The court stated:

[T]he relevant statute in the present case [A.R.S. 

§ 13-1103(A)(2)] is unusual. Instead of deleting an element 

of the greater offense, it specifies a different circumstance as 

a requirement to find the lesser offense . . . .

Id. at ¶ 6. The court explained:

Defendant’s acquittal of manslaughter does not necessarily 

mean that she did not commit second-degree murder. It 

might well have meant that the jury found Defendant had 

not acted after a sudden quarrel or in the heat of passion. 

This is quite likely, given the fact that the victim was shot in 

his sleep and that the jury convicted on the second-degree 

murder charge. 

Id. at 84-85, ¶ 6, 50 P.3d at 834-35. The court ruled that double jeopardy 

principles did not bar retrying Peak for second degree murder. Id.

¶9 Peak did not suggest, let alone hold, that the “different 

circumstance” existing for provocation manslaughter is an element of the 

offense over and above those necessary to prove second degree murder. 

Black’s Law Dictionary 597 (9th ed. 2009) defines “elements of crime” as 

“[t]he constituent parts of a crime — usu. consisting of the actus reus, 

mens rea, and causation — that the prosecution must prove to sustain a 

conviction.” Unlike a true element of a charged offense, it is not the 

State’s burden to prove “a sudden quarrel or heat of passion resulting 

from adequate provocation by the victim.” A.R.S. § 13-1103(A)(2). The 

existence of this “different circumstance,” Peak, 203 Ariz. at 84, ¶ 6, 50 P.3d 

at 834, is a question of fact for the jury to determine based on the evidence 

presented, cf. State v. Young, 192 Ariz. 303, 307, ¶¶ 13, 16, 965 P.2d 37, 41 

(App. 1998) (under statute making exception for firearms in “permanently 

inoperable condition,” whether a given weapon was permanently 

inoperable is a question of fact. “Operability of the weapon is not an 

element of the offense of knowingly possessing a prohibited weapon.”). 

¶10 In State v. Kamai, 184 Ariz. 620, 911 P.2d 626 (App. 1995), we 

considered whether unlawful use of a means of transportation is a lesserincluded offense of theft of an automobile. The statute under 

consideration stated that unlawful use of a means of transportation occurs 
STATE v. LUA

Opinion of the Court

6

when, “without intent permanently to deprive,” a person knowingly takes 

unauthorized control over another’s means of transportation. 184 Ariz. at 

622, 911 P.2d at 628. The phrase “without intent permanently to deprive” 

did not appear, though, in the relevant theft statute, which prohibited 

controlling property of another “with the intent to deprive him of such 

property.” Id. This Court held that the phrase “without intent to 

permanently deprive” in the unlawful use statute did not “describe an 

element of the crime which the state must prove.” Id. Instead, it simply 

distinguished unlawful use from the offense of auto theft. Id. By way of 

analogy, we noted that first degree murder is homicide “with 

premeditation.” Id. at 623, 911 P.2d at 629. Second-degree murder, a 

lesser-included offense, is homicide “without premeditation.” Id. 

However, “[p]roper jury instructions on second-degree murder do not list 

‘without premeditation’ as an element of the offense that the state must 

prove.” Id. 

¶11 Similarly, a “sudden quarrel or heat of passion resulting 

from adequate provocation by the victim” distinguishes the offense of 

provocation manslaughter from second degree murder. As in Kamai, the 

phrase does not “describe an element of the crime which the state must 

prove.” Id. at 622, 911 P.2d at 628. Provocation manslaughter is 

comprised solely of elements of the greater offense of second degree 

murder. 

¶12 Lua does not contend the trial evidence was insufficient for 

jurors to find the “different circumstance” of “sudden quarrel or heat of 

passion resulting from adequate provocation by the victim.” A.R.S. 

§ 13-1103(A)(2); see Kamai, 184 Ariz. at 622, 911 P.2d at 628 (“The propriety 

of giving a jury instruction on a lesser included offense depends upon 

whether the offense is a lesser included offense of the crime charged and 

whether the evidence supports the giving of the instruction.”). Under the 

facts of this case, the trial court properly instructed the jury regarding 

attempted provocation manslaughter as a lesser-included offense of 

attempted second degree murder.
STATE v. LUA

Opinion of the Court

7

CONCLUSION

¶13 For the reasons stated, we affirm Lua’s convictions and 

sentences for two counts of attempted manslaughter.