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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DUSTIN MICHAEL SOMMERFIELD, Appellant. 

No. 1 CA-CR 16-0470 

Appeal from the Superior Court in Maricopa County

No. CR2015-107761-001 

The Honorable Erin Otis, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eric Knobloch

Counsel for Appellee 

Maricopa County Public Defender’s Office, Phoenix

By Kevin D. Heade

Counsel for Appellant

FILED 8-22-2017
STATE v. SOMMERFIELD

Decision of the Court

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MEMORANDUM DECISION

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

Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.

D O W N I E, Judge:

¶1 Dustin Michael Sommerfield appeals his conviction and 

sentence for second-degree murder. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 While driving home from work at approximately 8:10 p.m. on 

February 15, 2015, C.F. saw a man come partially out of the passenger 

window of a green Lincoln Navigator that was directly in front of him. The 

man, later identified as Sommerfield, pointed what appeared to be a gun at 

a truck in the adjacent lane. The truck veered off into a neighborhood. 

Sommerfield withdrew the gun but continued to lean out the window and 

yell at passing vehicles. 

¶3 C.F. called 9-1-1 and followed the Navigator, which was being 

driven by a woman. Another truck soon pulled alongside the Navigator, 

and the Navigator swerved toward the truck, trying to run it off the road. 

Sommerfield again came out of the passenger window and appeared to try 

to throw something at the truck. After the Navigator turned into a parking 

lot, a marked patrol vehicle pulled behind it. When officers activated the

vehicle’s lights and siren, the Navigator “took off.” The police cruiser 

initially followed as the Navigator moved erratically through traffic but 

stopped to allow an air unit to conduct surveillance. After the patrol car

retreated, the Navigator began moving with the flow of traffic, though the 

driver at times used private property to circumvent stoplights. 

¶4 After several blocks, the Navigator stopped, and Sommerfield 

exited the passenger’s side, walked around the vehicle, and got into the 

driver’s side. While driving the Navigator, Sommerfield turned the 

headlights off and on. He ran one red light, drove over a raised median to 

avoid a second red light, and ran a third red light. At the next traffic light, 

 1 We view the facts in the light most favorable to sustaining the 

verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). 
STATE v. SOMMERFIELD

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Sommerfield drove into the intersection, heading westbound, and struck a 

white Dodge traveling southbound. The driver of the Dodge was killed. 

The female occupant of the Navigator attempted to leave the scene but was 

apprehended. Officers arrested Sommerfield, who had bloodshot, watery 

eyes, slurred speech, and a strong odor of alcohol. After obtaining a search 

warrant, officers drew his blood. 

¶5 Sommerfield was charged with second-degree murder. As 

aggravating circumstances, the State alleged that Sommerfield had a prior 

felony conviction and was on release at the time of the charged offense. 

¶6 The State called numerous witnesses at trial who were

stopped at the intersection at the time of the collision. The witnesses 

consistently testified that the Navigator entered the intersection without 

headlights. One witness testified she was “positive” the victim had a green 

light. Another witness testified she assumed the Navigator had a red light 

based on her understanding of how traffic lights operate. 

¶7 The criminalist who analyzed the blood sample testified that 

Sommerfield’s blood alcohol concentration at 12:07 a.m. and 1:15 a.m. was 

.179 and .163, respectively. Based on a retrograde analysis, the criminalist 

opined that Sommerfield’s blood alcohol concentration was .199 

approximately two hours after the accident. The parties stipulated that the 

victim died as a result of injuries sustained in the collision; she had 

diphenhydramine and hydrocodone in her system.2 The criminalist 

testified there is no specific level at which all individuals are impaired by 

these drugs and acknowledged that, when combined, the drugs can have 

an “additive effect” that could potentially affect a person’s driving. 

¶8 The parties agreed that the primary disputed issue at trial was 

whether Sommerfield or the victim ran a red light. Sommerfield called the 

deputy chief medical examiner, who testified that the victim had no 

contacts or glasses at the time of the autopsy, though her driver’s license

stated that she required corrective lenses. Sommerfield also called a 

representative from the Arizona Department of Transportation (“ADOT”) 

who maintains a database for the timing of traffic signals. With respect to 

the traffic light at issue, the ADOT witness testified it was possible for 

 2 Diphenhydramine is an antihistamine also known as Benadryl, and 

hydrocodone is an opioid pain medication. The victim had a prescription 

for the hydrocodone. 
STATE v. SOMMERFIELD

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eastbound and southbound traffic to have a simultaneous red light while 

westbound traffic had a green light. 

¶9 After a 12-day trial, the jury found Sommerfield guilty of 

second-degree murder. The jury found one aggravating factor: that the 

offense involved the use of a deadly weapon or dangerous instrument, 

specifically, a motor vehicle. The trial court sentenced Sommerfield to an 

aggravated term of 17 years’ imprisonment. Sommerfield timely appealed.

We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) 

sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. Jury Instructions

¶10 Sommerfield contends the trial court erred by declining to 

give the following jury instructions he requested regarding causation:

 2.03 — Causation Instruction – Intervening Event

Conduct is the cause of a result when both of the following 

exist:

1. But for the conduct the result in question would not have 

occurred.

2. The relationship between the conduct and result satisfies 

any additional causal requirements imposed by the 

definition of the offense.

In order to find the defendant guilty of second degree 

murder, you must find that the death was proximately caused 

by the acts of the defendant.

The proximate cause of a death is a cause which, in natural 

and continuous sequence, produces the death, and without 

which the death would not have occurred.

Proximate cause does not exist if the chain of natural effects 

and cause either does not exist or is broken by a superseding 

intervening event that was unforeseeable by the defendant 

and, with the benefit of hindsight, may be described as 

abnormal or extraordinary.
STATE v. SOMMERFIELD

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The State must prove beyond a reasonable doubt that a 

superseding intervening event did not cause the death.

Intervening Event or Superseding Cause

It is a defense to the charge of second degree murder that the 

victim’s death was not the result of any criminal conduct on 

the part of the defendant, but that it resulted from a 

superseding cause. In regard to causation, an intervening 

event becomes a superseding cause only when its occurrence 

was both unforeseeable and when, with the benefit of 

hindsight, it may be described as abnormal or extraordinary.

The State must prove beyond a reasonable doubt that a 

superseding intervening event did not cause the death. 

¶11 The State objected to Sommerfield’s proffered instructions, 

asserting the evidence did not support them. Sommerfield countered that 

evidence of the victim’s possible impairment and failure to wear corrective 

lenses, as well as the possibility she ran a red light, supported a superseding

cause instruction. The trial court disagreed, ruling the evidence did not

suggest a superseding cause, but instead addressed “who caused” the 

collision. Concluding the evidence did not support the requested 

instructions, the court declined to give them. 

¶12 We review the refusal to give requested jury instructions for 

an abuse of discretion, deferring to the trial court’s evaluation of the 

evidence. State v. Wall, 212 Ariz. 1, 3, 5, ¶¶ 12, 23 (2006). A party is entitled 

to a jury instruction on any theory reasonably supported by the evidence, 

State v. Moody, 208 Ariz. 424, 467, ¶ 197 (2004), but a court does not err by 

refusing to give an instruction that “does not fit the facts of the particular 

case, or is adequately covered by the other instructions.” State v. Hussain, 

189 Ariz. 336, 337 (App. 1997); see also State v. Mott, 187 Ariz. 536, 546 (1997) 

(“A trial court is not required to give a proposed instruction when its 

substance is adequately covered by other instructions.”). We review de novo

whether instructions accurately and adequately state the law. State v. Fierro, 

220 Ariz. 337, 338, ¶ 4 (App. 2008). We review jury instructions in their 

entirety and will not reverse based on an erroneous instruction unless the 

instructions, taken as a whole, reasonably could have misled jurors. State 

v. Hoskins, 199 Ariz. 127, 145, ¶ 75 (2000); State v. Gallegos, 178 Ariz. 1, 10

(1994). 

¶13 “In Arizona, both ‘but for’ causation and proximate cause 

must be established in a criminal case.” State v. Marty, 166 Ariz. 233, 236
STATE v. SOMMERFIELD

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(App. 1990). To establish legal causation under the facts of this case, the 

State was required to prove that “but for” Sommerfield’s conduct, the 

victim’s death would not have occurred. Id.; see also A.R.S. § 13-203(A)(1) 

(conduct is the cause of a result when the “result in question” would not 

have occurred “[b]ut for the conduct” at issue). To establish proximate 

cause, the State was required to establish “that the difference between the 

result intended” and “the harm actually suffered” was “not so 

extraordinary that it would be unfair to hold” Sommerfield responsible for 

the victim’s death. See Marty, 166 Ariz. at 237. A proximate cause may be 

interrupted when “another cause with which the defendant was in no way 

connected intervenes, and but for which” the injuries would not have 

occurred. Id. An intervening cause is a superseding event, though, only 

when unforeseeable, abnormal, or extraordinary. State v. Bass, 198 Ariz. 

571, 575–76, ¶¶ 11–13 (2000). 

¶14 In its final jury instructions, the trial court instructed jurors 

that:

The crime of Second Degree Murder requires proof of the 

following:

Under circumstances manifesting extreme indifference to 

human life, the defendant recklessly engaged in conduct 

which created a grave risk of death and thereby caused the 

death of another.

The Defendant’s conduct is reckless if:

1. The defendant is aware of and consciously disregards a 

substantial and unjustifiable risk of death.

2. The risk must be such that disregarding it is a gross deviation 

from what a reasonable person would do in the situation. 

¶15 The second-degree murder instruction identified all elements 

of the charged offense and accurately tracked the relevant statute. A.R.S. 

§ 13-1104(A)(3); see State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998) (court 

need not give every instruction requested by the defense: “The test is 

whether the [given] instructions adequately set forth the law applicable to 

the case”). “[N]o proximate cause instruction is required when the 

instructions in their entirety properly inform the jury of the elements of the 

offense, including causation . . . a proximate-cause instruction [need not] be 

given whenever a causation issue is raised.” State v. Almaguer, 232 Ariz. 

190, 197 n.6, ¶ 17 (App. 2013); see also Mott, 187 Ariz. at 546 (proximate cause 
STATE v. SOMMERFIELD

Decision of the Court

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instruction not required when the instructions given “instruct the jury on 

the elements of the crime, including causation,” and, in their entirety, 

adequately state the law). 

¶16 Relying on State v. Shumway, 137 Ariz. 585 (1983), 

Sommerfield argues the superseding cause instruction was necessary 

because jurors could consider the victim’s conduct when determining his 

culpability. In Shumway, the undisputed evidence established that the 

defendant “was not running a red light” and had the right of way when he 

collided with the decedent’s car. Id. at 588. Under those facts — which 

differ materially from those here — the supreme court held that the trial 

court erred by refusing to give the defendant’s requested instruction that

left-turn drivers must yield the right-of-way to approaching traffic from the 

opposite direction. Id. at 588. 

¶17 Unlike Shumway, Sommerfield did not undisputedly have the 

right of way. Furthermore, the evidence he cites in support of a

superseding cause instruction is the ADOT representative’s testimony, but 

that witness simply stated it was possible for eastbound and southbound 

traffic to simultaneously have a red light while westbound traffic had a 

green light. Evidence, “not merely an inference making an argument 

possible,” is required to support a jury instruction. State v. Vassell, 238 Ariz. 

281, 284, ¶ 9 (App. 2015). 

¶18 To the extent Sommerfield contends the victim’s medication 

use and/or failure to wear corrective lenses warranted a superseding cause 

instruction, we disagree. The parties agreed that either Sommerfield or the 

victim ran a red light and caused the collision. The victim’s possible 

cognitive or visual impairment had no tendency to suggest the color of the 

light for her direction of travel. Nor would such circumstances constitute a

superseding event breaking the natural and continuous chain of events.3 

Furthermore, the jury instructions did not prevent Sommerfield from 

arguing that he had the right of way — something he did repeatedly. See 

 3 Citing testimony by the State’s accident reconstruction expert, 

Sommerfield also contends the victim was speeding. But that expert 

testified the victim was traveling 61 miles-per-hour in a 65 mile-per-hour 

zone. See State v. Vandever, 211 Ariz. 206, 208, ¶ 8 (App. 2005) (Speeding 

was not an intervening event because a collision was “clearly a foreseeable 

event within the scope of the risk created by [the defendant’s] illegal left 

turn.”). 
STATE v. SOMMERFIELD

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State v. Bruggerman, 161 Ariz. 508, 510 (App. 1989) (closing arguments may 

be considered in assessing adequacy of jury instructions). 

¶19 Under these circumstances, the trial court did not abuse its 

discretion by declining to give Sommerfield’s requested causation

instructions.

II. Evidentiary Ruling

¶20 Sommerfield moved in limine to preclude evidence that he 

brandished a handgun at another vehicle roughly 30 minutes before

colliding with the victim. He argued the evidence was “not relevant, 

extremely prejudicial, and inadmissible character evidence.” In response, 

the State argued:

[T]he State must not only prove the defendant’s conduct was 

reckless but also that the defendant manifested an extreme 

indifference to human life. The gun pointing and the 

defendant’s attempt to hit another car as it passed the 

Navigator is relevant to why the defendant fled from police. 

. . .

The gun pointing is relevant to the defendant 

manifesting an extreme indifference to human life. This piece 

of evidence is why the pursuit which ultimately killed the 

victim started and it makes it more probable than not the 

defendant manifested an extreme indifference to human life. 

The gun pointing is highly probative of the defendant’s guilt 

in this case and is not out-weighed by unfair prejudice. 

Finally, the State is not using the gun pointing as character 

evidence; it is not another bad act it is part of the 

circumstances of the defendant causing the victim’s death. 

The trial court denied Sommerfield’s motion “[f]or the reasons stated in the 

State’s Response.”

¶21 While settling final jury instructions, the court questioned the 

State’s request for a character and reputation instruction. Acknowledging 

that the instruction had been submitted in error, the prosecutor withdrew 

it, and the court suggested giving a limiting instruction regarding

uncharged acts. The State objected, explaining that the gun-pointing 

evidence was not “other act” evidence, but circumstantial evidence of his 

manifest indifference to human life — an element of second-degree murder. 
STATE v. SOMMERFIELD

Decision of the Court

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Concluding Sommerfield’s use of a gun was part of a “continuous series” 

of events, rather than a separate act, the court did not give an “other act” 

limiting instruction. 

¶22 “Absent a clear abuse of discretion, we will not second-guess 

a trial court’s ruling on the admissibility or relevance of evidence.” State v. 

Rodriguez, 186 Ariz. 240, 250 (1996). We may affirm on any basis supported 

by the record. State v. Robinson, 153 Ariz. 191, 199 (1987).

¶23 Arizona Rule of Evidence (“Rule”) 404(b) prohibits evidence 

of other crimes, wrongs or acts to prove the defendant’s character to act in 

a certain way, but allows such evidence for non-propensity purposes, such 

as showing “motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.” By its express terms, the Rule 

applies only to evidence of “other” crimes, wrongs, or acts. Rule 404(b); see 

also State v. Ferrero, 229 Ariz. 239, 242, ¶ 13 (2012). 

¶24 The State relied on evidence that Sommerfield pointed a gun

at an occupied vehicle to prove continuing manifest extreme indifference to 

human life on the night in question. The State argued Sommerfield’s 

mental state when brandishing the firearm persisted until he crashed into 

the victim’s car — an inference that was reasonably supported by the 

evidence. After pointing the gun, Sommerfield continued to engage in 

conduct that endangered the lives of those around him. He threw objects 

at an approaching truck as the driver tried to force that vehicle off the road. 

And once he began driving the Navigator, Sommerfield turned off the 

headlights, notwithstanding it was dark outside. He repeatedly failed to 

stop at red lights, choosing to either circumvent intersections or drive 

through them. At one intersection, he caused an approaching vehicle with 

the right of way to brake hard and turn sideways to avoid a collision.

¶25 Because the gun-pointing evidence had a tendency to prove 

an element of the offense, it was intrinsic to the crime charged and was 

properly admitted. See State v. Salamanca, 233 Ariz. 292, 295, ¶ 11 (App. 

2013) (evidence proving a defendant’s mens rea “is admissible without 

regard to Rule 404(b)”). And while the evidence was prejudicial to the

defense, it did not suggest that jurors determine Sommerfield’s guilt on an 

improper basis. See Mott, 187 Ariz. at 545 (Unfairly prejudicial evidence 

suggests jurors render a “decision on an improper basis such as emotion, 

sympathy, or horror.”).
STATE v. SOMMERFIELD

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CONCLUSION

¶26 For the foregoing reasons, we affirm Sommerfield’s 

conviction and sentence.