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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

CHRISTOPHER JOSEPH BEGAYE, Appellant. 

No. 1 CA-CR 23-0180 

Appeal from the Superior Court in Mohave County 

No. S8015CR202200920 

The Honorable Billy K. Sipe Jr., Judge Pro Tempore

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Jana Zinman 

Counsel for Appellee 

Jill L. Evans Attorney at Law, Flagstaff 

By Jill L. Evans 

Counsel for Appellant

FILED 05-30-2024
STATE v. BEGAYE 

Decision of the Court 

2 

MEMORANDUM DECISION 

Presiding Judge Anni Hill Foster delivered the decision of the Court, in 

which Judge Brian Y. Furuya and Vice Chief Judge Randall M. Howe 

joined. 

F O S T E R, Judge: 

¶1 Christopher Begaye appeals his convictions and sentences for 

attempted second-degree murder, aggravated assault, and disorderly 

conduct. For the following reasons, the superior court’s decision is 

affirmed. 

FACTUAL AND PROCEDURAL HISTORY 

¶2 Because Begaye challenges the sufficiency of evidence to 

support the attempted-murder conviction, this Court recites the facts in the 

light most favorable to sustaining that conviction. See State v. Guerra, 161 

Ariz. 289, 293 (1989). 

¶3 Begaye and his wife, A.G., drove from New Mexico to 

Arizona, where they rapidly encountered financial difficulties while living 

in their van on a limited income. On August 9, 2022, as they were in the car 

together, they argued about their predicament. Begaye had been drinking, 

which tended to make him “very violent, very angry,” and he had taken 

methamphetamine. Sitting in the passenger seat as they argued, Begaye 

pulled a gun out of a backpack on the floorboard, said, “What, you don’t 

think I’ll hurt you?” then aimed the gun at A.G.’s head, and pulled the 

trigger. A.G. “ducked towards [Begaye] to avoid him . . . shooting her in the 

head.” The bullet entered her upper left shoulder, exited her upper back, 

and became lodged in the driver’s seat headrest. 

¶4 After she realized she had been shot, A.G. exited the car. 

Begaye quickly drove off. A.G. flagged down a passerby, who called 911. 

A.G. told police that Begaye shot her and described both him and their 

vehicle. A.G. was transported to a hospital, where she was treated and 

released the same day “[w]ithout any significant impediments.” 

¶5 Officers located Begaye and the vehicle about 45 minutes later 

at an outdoor mall. When they contacted him, Begaye made inconsistent 

statements about the shooting. He initially denied knowing that A.G. had 
STATE v. BEGAYE 

Decision of the Court 

3 

been shot but later conveyed she was shot by accident with her own gun—

either by herself or by him. 

¶6 The State charged Begaye with attempted second-degree 

murder, two counts of aggravated assault (using a deadly weapon and 

causing serious physical injury), misconduct involving weapons, and 

disorderly conduct (recklessly handling, displaying, or discharging a 

deadly weapon). A.G. refused to testify at Begaye’s trial, and the superior 

court found her unavailable pursuant to Arizona Rule of Evidence 804 for 

her refusal to testify and the inability to get her to trial. Because the court 

found Begaye complicit in A.G.’s unavailability, it allowed the State to 

introduce A.G.’s out-of-court statements against him at trial. See Ariz. R. 

Evid. 804(b)(6). 

¶7 During trial, the superior court dismissed the charge of 

misconduct involving weapons on the State’s motion. The court also 

entered a judgment of acquittal on the charge of aggravated assault by 

serious physical injury after determining there was insufficient evidence 

A.G. suffered serious physical injury. See Ariz. R. Crim. P. 20(a)(1). The jury 

found Begaye guilty of the remaining three counts. The court sentenced him 

to concurrent prison terms, the longest being 10.5 years for the attemptedmurder conviction. 

¶8 Begaye timely appealed. This Court has jurisdiction under 

Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12-

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

DISCUSSION 

I. Substantial evidence supports the attempted second-degree 

murder conviction. 

¶9 Begaye contends the evidence was insufficient to support his 

conviction of attempted second-degree murder. Such claims are reviewed 

de novo, viewing all facts and resolving all conflicts in the evidence against 

the defendant and in favor of the verdict. State v. Pena, 235 Ariz. 277, 279, 

¶ 5 (2014). Review is confined to determining whether there is substantial 

evidence to support the verdict. Id. “Substantial evidence is more than a 

mere scintilla and is such proof that reasonable persons could accept as 

adequate and sufficient to support a conclusion of defendant’s guilt beyond 

a reasonable doubt.” State v. Ellison, 213 Ariz. 116, 134, ¶ 65 (2006) (citations 

and internal quotation marks omitted). “The substantial evidence required 

to support a conviction may be direct or circumstantial,” State v. Teagle, 217 

Ariz. 17, 27, ¶ 40 (App. 2007), and this Court does not “reweigh the 
STATE v. BEGAYE 

Decision of the Court 

4 

evidence to decide if it would reach the same conclusions as the trier of 

fact,” State v. Barger, 167 Ariz. 563, 568 (App. 1990). 

¶10 To prove Begaye guilty of attempted second-degree murder, 

the State needed to establish that he: 

intentionally but without premeditation: 

1. . . . engaged in conduct that [he] intended or believed 

would result in the death of [A.G.] if the circumstances 

relating to the crime were as [Begaye] believed them to be 

. . . or . . . 

2. . . . committed any act that was a step in a course of 

conduct that [Begaye] intended or believed would cause 

the death of [A.G.]. 

State v. Fierro, 254 Ariz. 35, 41, ¶ 18 (2022); see also State v. Ontiveros, 206 Ariz. 

539, 540, ¶ 1 (App. 2003) (“A person may not be convicted of attempted 

second-degree murder unless it is proven that he intends or knows that his 

conduct will cause death.”); A.R.S. §§ 13-1001(A)(1)–(2), 13-1104(A)(1)–(2). 

¶11 The State presented the following evidence: Begaye conveyed 

that he intended to shoot A.G. before firing a gun at her; A.G. ducked to 

avoid being shot in the head; and the gun was aimed in such a way that the 

bullet settled in the driver’s side headrest—which jurors could presume 

was behind A.G.’s head before she ducked. Reasonable jurors could infer 

from such evidence that Begaye shot at A.G. intending to kill her. Thus, 

substantial evidence was presented that Begaye shot A.G. with the intent to 

kill her. 

¶12 Begaye contends the superior court erroneously instructed 

jurors on the elements of attempted second-degree murder, which enabled 

them to find him guilty of a nonexistent offense—attempted second-degree 

murder based on knowledge or intent to cause serious physical injury. See 

Fierro, 254 Ariz. at 38, 41, ¶¶ 1, 16 (fundamental error for trial court to 

instruct that attempted second-degree murder may be based on intent or 

knowledge that conduct will cause serious physical injury); Ontiveros, 206 

Ariz. at 541–42, ¶¶ 11, 17 (fundamental error for trial court to instruct that 

attempted second-degree murder may be based on knowledge that conduct 

will cause serious physical injury); State v. Dickinson, 233 Ariz. 527, 530–31, 

¶¶ 11–12 (App. 2013) (same); State v. Felix, 237 Ariz. 280, 284–85, ¶ 14 (App. 

2015) (same). 
STATE v. BEGAYE 

Decision of the Court 

5 

¶13 The jury instructions provided: 

A person commits attempt if, acting with the kind of 

culpability otherwise required for the commission of an 

offense, such person: 

1. Intentionally engages in conduct that would constitute 

an offense if the attendant circumstances were as such person 

believes them to be; or 

2. Intentionally does or omits to do anything which, 

under the circumstances as such person believes them to be, 

is any step in a course of conduct planned to culminate in 

commission of an offense. 

The crime of Second Degree Murder requires proof of one of 

the following: 

1. The defendant intentionally caused the death of 

another person; or 

2. The defendant caused the death of another person by 

conduct which the defendant knew would cause death or 

serious physical injury. 

 

Based on those instructions, the prosecutor argued during closing 

statements that jurors should find Begaye guilty of attempted seconddegree murder because he knew his conduct would cause serious physical 

injury. 

¶14 But, Begaye “expressly waiv[es] the issue that the instruction 

was reversible error,” in favor of a claim “of insufficient evidence which 

would vacate the conviction without remand.” Although this court has 

stated it will “not ignore” fundamental error “when we find it,” State v. 

Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007), this Court will not apply that 

principle when the defendant notes a possible claim of error and plainly 

asks us to ignore it. 

¶15 Given Begaye’s unequivocal waiver, the issue is not whether 

the superior court’s instructions were erroneous. Any such error had no 

bearing on the sufficiency of evidence to support Begaye’s conviction of 

attempted second-degree murder. “Sufficiency review essentially 

addresses whether the government’s case was so lacking that it should not 
STATE v. BEGAYE 

Decision of the Court 

6 

have even been submitted to the jury.” Musacchio v. United States, 577 U.S. 

237, 243 (2016) (citation omitted). Thus, Begaye’s sufficiency claim limits 

this Court to considering whether the evidence—as presented—enabled the 

jury to find the correct elements of attempted second-degree murder 

proven beyond a reasonable doubt. Id. For the reasons set forth above, 

reasonable jurors could so find. This Court’s “limited determination on 

sufficiency review . . . does not rest on how the jury was instructed.” Id.

II. Disorderly conduct with a deadly weapon is not a lesserincluded charge of aggravated assault using a deadly weapon. 

¶16 Although neither party addressed the issue, when this Court 

sees a potential fundamental error issue, it has a duty to address the issue 

rather than overlooking it. Here, due to the Arizona Supreme Court’s 

holding in State v. Angle, 149 Ariz. 478 (1986), there is a question of 

multiplicity that arises as to whether Begaye’s disorderly conduct with a 

deadly weapon is a lesser included offense of aggravated assault using a 

deadly weapon. Based on the supreme court’s reasoning in Angle and the 

facts of this case, this Court concludes that Begaye’s disorderly conduct was 

not a lesser-included offense of his aggravated assault, and no fundamental 

error exists. 

¶17 Convicting a defendant of an offense and its lesser-included 

offense violates that defendant’s right against double jeopardy. State v. 

Becerra, 231 Ariz. 200, 205, ¶ 20 (App. 2013). “An offense is lesser-included 

if it contains all but one of the elements of the greater offense.” Id. This 

means that a “greater offense cannot be committed without necessarily 

committing the lesser offense.” State v. Wall, 212 Ariz. 1, 3, ¶ 14 (2006) 

(quotation omitted). 

¶18 Begaye was convicted of both disorderly conduct under A.R.S. 

§ 13–2904(A)(6) and aggravated assault under A.R.S. § 13–1204(A)(2). The 

first offense describes disorderly conduct by “[r]ecklessly handl[ing], 

display[ing] or discharg[ing] a deadly weapon or dangerous instrument.” 

A.R.S. § 13-2904(A)(6). But to commit disorderly conduct the person must 

act “with intent to disturb the peace and quiet of a neighborhood, family or 

person, or with knowledge of doing so.” Id.

¶19 The second offense describes aggravated assault by “us[ing] a 

deadly weapon or dangerous instrument.” A.R.S. § 13-1204(A)(2). But to 

commit aggravated assault a person must also commit “simple” assault. Id.

“Simple” assault may be committed in three ways: “1. Intentionally, 

knowingly or recklessly causing any physical injury to another person; or 
STATE v. BEGAYE 

Decision of the Court 

7 

2. Intentionally placing another person in reasonable apprehension of 

imminent physical injury; or 3. Knowingly touching another person with 

the intent to injure, insult or provoke such person.” A.R.S. § 13-1203(A). 

Because a person can commit “simple” assault in three ways, then a person 

can also commit aggravated assault with a deadly weapon in three ways. 

¶20 In Angle, the Arizona Supreme Court concluded that 

disorderly conduct under A.R.S. § 13–2904(A)(6) for “[r]ecklessly 

handl[ing], display[ing] or discharge[ing] a deadly weapon or dangerous 

instrument” is a lesser included offense of aggravated assault under A.R.S. 

§ 13–1204(A)(2) by “us[ing] a deadly weapon or dangerous instrument.” 

Angle, 149 Ariz. at 478. But its reasoning is limited to aggravated assault 

with a deadly weapon charged with committing “simple” assault under 

A.R.S. § 13–1203(A)(2) by “[i]ntentionally placing another person in 

reasonable apprehension of imminent physical injury.” The supreme court 

in Angle “adopt[ed] the dissenting opinion of” this Court. Id. That 

dissenting opinion reveals that Angle was charged with aggravated assault 

for “intentionally plac[ing] his wife and the [officers] in reasonable 

apprehension of imminent bodily harm.” State v. Angle, 149 Ariz. 499, 508 

(App. 1985) (J. Kleinschmidt, dissenting). Judge Kleinschmidt reasoned 

“that as a matter of common sense it is impossible to put a person in 

reasonable apprehension of imminent bodily injury without also disturbing 

that person’s peace or quiet.” Id. Thus, if a person commits aggravated 

assault with a deadly weapon by placing another person in imminent fear 

of physical harm, then disorderly conduct is a lesser-included offense. 

¶21 Later cases support this limited application. The supreme 

court later “reaffirm[ed its] holding in Angle.” State v. Miranda, 200 Ariz. 67, 

69, ¶ 5 (2001). But it recognized the specific reasoning of Angle: 

In Angle, we reasoned that because one cannot place a person in 

reasonable apprehension of imminent physical danger without in fact 

also disturbing her peace, all elements of disorderly conduct by 

reckless display of a firearm are in fact elements of aggravated 

assault. We therefore concluded that disorderly conduct 

instructions are appropriate in aggravated assault cases if the 

facts support both instructions.” 

Id. at 68, ¶ 3 (citation omitted) (emphasis added). This Court has also 

grappled with the issue of a defendant convicted of aggravated 

assault by placing a victim in reasonable apprehension of physical 

harm. State v. Erivez, 236 Ariz. 472, 474, ¶ 6 (App. 2015). This Court 

concluded that “[d]isorderly conduct by recklessly displaying or 
STATE v. BEGAYE 

Decision of the Court 

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handling a firearm [was] a lesser-included offense of aggravated 

assault as charged in this case.” Id. at 475, ¶ 15 (emphasis added). 

¶22 Here though, Begaye was convicted of aggravated assault by 

“intentionally, knowingly or recklessly caus[ing] a physical injury” under 

A.R.S. § 13-1203(A)(1). Because his crime has different elements than the 

crime addressed in Angle, the reasoning in Angle does not apply. The facts 

in this case do not support an argument for error under multiplicity 

grounds. There is no fundamental error on this premise. 

III. The jury properly found that Begaye committed dangerous 

offenses. 

¶23 The superior court sentenced Begaye to enhanced prison 

terms for dangerous offenses under A.R.S. § 13-704. Although the jury 

explicitly determined by special verdict that Begaye committed a 

dangerous offense when he committed attempted second-degree murder, 

the jury did not make similar findings on the counts for aggravated assault 

and disorderly conduct. Begaye contends that omission entitles him to be 

resentenced on those two counts. Because he did not object at trial, this 

Court reviews for fundamental error only. State v. Escalante, 245 Ariz. 135, 

138, ¶ 1 (2018). 

¶24 “[N]o specific finding of dangerousness is required where an 

element of the offense charged requires proof of the dangerous nature of 

the felony.” State v. Smith, 146 Ariz. 491, 499 (1985); see also State v. Caldera, 

141 Ariz. 634, 637–38 (1984) (reasoning that a jury’s dangerousness 

determination may be made either explicitly by special verdict or implicitly 

when dangerousness is “a necessary element in the felony for which the 

appellant was originally convicted”). 

¶25 Because the jury necessarily determined that Begaye 

committed dangerous offenses when it found him guilty of aggravated 

assault under A.R.S. § 13-1204(A)(2) and disorderly conduct under A.R.S. 

§ 13-2904(A)(6), the superior court could impose sentences under A.R.S. 

§ 13-704 for those convictions. Compare A.R.S. § 13-1204(A)(2) (defining 

aggravated assault as an assault by a “person us[ing] a deadly weapon or 

dangerous instrument“), and A.R.S. § 13-2904(A)(6) (defining disorderly 

conduct as intentionally or knowingly disturbing the peace of a person by 

“[r]ecklessly handl[ing], display[ing] or discharg[ing] a deadly weapon or 

dangerous instrument”), with A.R.S. § 13-105(13) (defining dangerous 

offense as “an offense involving the discharge, use or threatening exhibition 

of a deadly weapon or dangerous instrument”); see also State v. Suniga, 145 
STATE v. BEGAYE 

Decision of the Court 

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Ariz. 389, 396 (App. 1985) (holding dangerous-offense finding “implicit” in 

guilty verdict for aggravated assault by use of a deadly weapon or 

dangerous instrument); State v. Garcia, 219 Ariz. 104, 108, ¶ 16 (App. 2008) 

(holding disorderly conduct under § 13-2904(A)(6) to be “an offense 

involving ‘the discharge, use or threatening exhibition of a deadly weapon 

or dangerous instrument’”). Begaye fails to establish error on this point. 

¶26 Finally, this Court is unpersuaded by Begaye’s reliance on 

State v. Larin, 233 Ariz. 202, 213, ¶¶ 41–42 (App. 2013), which held that the 

superior court could not sentence the defendant under § 13-704 without an 

explicit dangerousness finding by the jury even though the jury found the 

defendant guilty of an inherently dangerous offense. The court in Larin

confirmed the general rule that “a jury need not make a finding of 

dangerousness where it is ‘inherent in the crime.’” Id. at 212, ¶ 38. The 

court’s decision not to apply that rule in Larin was based on an unusual 

peculiarity of the case—specific information suggesting that the jury might 

have found a dangerous-offense allegation unproven despite its verdict. Id.

at ¶ 42. No such circumstance was present in Begaye’s case. 

CONCLUSION 

¶27 For these reasons, Begaye’s convictions and sentences are 

affirmed.