NOTICE: NOT FOR PUBLICATION.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.

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
STATE v. LUA

Decision of the Court

2

MEMORANDUM DECISION

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

Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.

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. In a separate opinion, we 

affirm the attempted manslaughter convictions. In this memorandum 

decision, we affirm Lua’s remaining convictions and sentences. 

FACTS AND PROCEDURAL HISTORY1

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

and other men who were 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. 

¶3 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.” Lua stated he discarded the gun used to 

shoot D.G. and D.C. and went to Mexico because he knew he was 

“wanted.” 

¶4 Lua was originally charged with two counts of attempted 

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

 

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). We grant Lua’s Motion for Extension of Time to File 

Reply Brief and have considered that brief.
STATE v. LUA

Decision of the Court

3

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

5). Lua’s 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 Arizona Rule of Criminal Procedure 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.

¶5 At his second trial, Lua contended he was justified in 

shooting D.C. and D.G. on multiple grounds, including self-defense, 

defense of a third person, defense of an occupied vehicle, and crime 

prevention. See Arizona Revised Statutes (“A.R.S.”) §§ 13-404, -406, -411, 

and -418. The jury, though, 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. 

¶6 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

I. Jury Instructions 

A. Burden of Proof re: Justification

¶7 When a defendant offers evidence of justification, “the state 

must prove beyond a reasonable doubt that the defendant did not act with 

justification.” A.R.S. § 13-205(A); see Rev. Ariz. Jury Instr. (”RAJI”) Stat. 

Crim. 4.04 (self defense), 4.06 (defense of third person), 4.07 (defense of 

premises), 4.11 (crime prevention), 4.18 (defense of occupied vehicle).2 In 

the case at bar, the court instructed the jury as follows:

If evidence is presented by the Defendant that he was 

justified in acting in self-defense, to protect a third person, to 

prevent the crime of Aggravated Assault, or in defense of an 

occupied vehicle, then the State must prove beyond a 

reasonable doubt that he was not so justified. 

 2 We refer to the criminal RAJIs in effect at the time of trial, which 

was prior to 2013 revisions. 
STATE v. LUA

Decision of the Court

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The court further instructed jurors regarding the justification theories of 

self-defense, defense of a third person, use of force in crime prevention, 

and defense of an occupied vehicle. According to Lua, though, the court 

should have sua sponte added the following language to the above-quoted 

instruction: “If the State fails to carry this burden, then you must find the 

defendant not guilty of the charges [here, of attempted murder, 

manslaughter, aggravated assault, and assisting a criminal street gang].” 

We disagree.

¶8 “No party may assign as error on appeal the court’s giving 

or failing to give any instruction . . . unless the party objects thereto before 

the jury retires to consider its verdict, stating distinctly the matter to 

which the party objects and the grounds of his or her objection.” Rule

21.3(c). “It is the rare case in which an improper instruction will justify 

reversal of a criminal conviction when no objection has been made in the 

trial court.” State v. Zaragoza, 135 Ariz. 63, 66, 659 P.2d 22, 25 (1983). 

Because Lua did not request the language at issue, we review only for 

fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d

601, 607 (2005). Fundamental error is error going to the foundation of the 

case, error that takes from the defendant a right essential to his defense, 

and error of such magnitude that the defendant could not have received a 

fair trial. Id. at 568, ¶ 24, 115 P.3d at 608. In determining the propriety of 

jury instructions, we consider the instructions as a whole to determine 

whether they adequately reflect the law. State v. Sierra-Cervantes, 201 Ariz. 

459, 462, ¶ 16, 37 P.3d 432, 435 (App. 2001). 

¶9 We find no fundamental error. Instructing jurors that the 

State must prove beyond a reasonable doubt that Lua did not act with 

justification under any of the proffered theories, together with the general 

burden of proof instruction (“the State has the burden of proving the 

Defendant guilty beyond a reasonable doubt”) was legally sufficient. See, 

e.g., State v. Cannon, 157 Ariz. 107, 107, 755 P.2d 412, 412 (1988) (declining 

to find fundamental error because “the elements of self-defense were 

stated and the jury was instructed that the prosecution had to prove all of 

its case beyond a reasonable doubt”).

B. Apparent Attempted Use or Apparent Threatened Use of 

Unlawful Deadly Force

¶10 Lua also contends the trial court should have instructed 

jurors they could find his actions justified based on D.C.’s apparent

attempted use or apparent threatened use of deadly force. We once again 
STATE v. LUA

Decision of the Court

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review for fundamental error because Lua did not preserve this objection 

in the trial court. The court instructed jurors, in pertinent part:

Self-defense or protection of a third person justifies the use 

or threat of physical force only while the apparent danger 

continues. The right to use physical force in self-defense or 

in protection of a third person ends when the apparent 

danger ends.

Actual danger is not necessary to justify the use of physical 

force in self-defense or to protect a third person. It is enough 

if a reasonable person in the Defendant's situation would 

have believed that he or the third person was in immediate 

physical danger.

¶11 Additionally, during closing argument, defense counsel 

discussed the testimony of independent eyewitnesses and stated:

Both of them said that if they were in Mr. Lua’s position, 

they would have thought that [D.C.] had a gun in his hand 

as he approached that vehicle.

Now, starting with the justification instruction. Actual 

danger is not necessary to justify the use of physical force in 

self-defense, or to protect a third person. It is enough that a 

reasonable person[] in the defendant’s situation would have 

believed that he or the third person was in immediate 

physical danger. 

¶12 The instructions given, in conjunction with the closing 

arguments of counsel, properly advised jurors that actual attempted or 

threatened use of deadly force was not required to justify Lua’s actions. 

See State v. Johnson, 205 Ariz. 413, 417, ¶ 11, 72 P.3d 343, 347 (App. 2003)

(appellate courts consider jury instructions, “in conjunction with the 

closing arguments of counsel.”). Moreover, in instructing jurors about 

justification in the context of crime prevention, the court advised that 

“[t]he actual commission of the crime of Aggravated Assault is not 

necessary to justify the use or threatened use of physical force or deadly 

physical force in crime prevention. It is enough if a reasonable person in 

the person’s situation would have believed that the crime of Aggravated 

Assault was being or would be committed.” We find no error, 

fundamental or otherwise.
STATE v. LUA

Decision of the Court

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C. Innocent Third Party 

¶13 Lua next challenges the following jury instruction:

Even if the Defendant was justified in threatening or using 

physical force or deadly physical force against one person, if 

in doing so he injured an innocent third person the 

justification for his conduct as to the one person is not 

available in a prosecution for the reckless injury to the 

innocent third person. 

¶14 Lua cites a June 14, 2012 transcript, asserting he objected to 

this instruction as unsupported by the evidence. That transcript, though,

is from Lua’s first trial. Objections made during that trial did not carry 

forward to the second trial. Our review would therefore be limited to 

fundamental error. Lua, though, presents no argument in his opening 

brief regarding fundamental error and has thus waived the issue. See State 

v. Moreno-Medrano, 218 Ariz. 349, 354, ¶¶ 16-17, 185 P.3d 135, 140 (App. 

2008) (declining to review for fundamental error when appellant failed to 

raise claim in trial court and failed on appeal to address whether alleged 

error was fundamental); see also State v. Watson, 198 Ariz. 48, 51, ¶ 4, 6 P.3d 

752, 755 (App. 2000) (arguments not presented until reply brief will not be 

considered). 

II. Joinder: Weapons Misconduct Charge

¶15 Lua contends the court committed fundamental error by

granting the State’s motion to join the weapons misconduct charge and by 

failing to sua sponte sever the joined cases. We assume, without deciding, 

that Lua did not invite this alleged error. Rule 13.3(a), (c) states:

a. Offenses. Provided that each is stated in a separate count, 

2 or more offenses may be joined in an indictment, 

information, or complaint, if they:

(1) Are of the same or similar character; or

(2) Are based on the same conduct or are otherwise 

connected together in their commission; or

(3) Are alleged to have been a part of a common 

scheme or plan.

. . .
STATE v. LUA

Decision of the Court

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c. Consolidation. If such offenses . . . are charged in separate 

proceedings, they may be joined in whole or in part by the 

court or upon motion of either party, provided that the ends 

of justice will not be defeated thereby.

Properly joined offenses may be severed by the court sua sponte and must 

be severed upon request if “necessary to promote a fair determination of 

the guilt or innocence of [the] defendant.” Rule 13.4(a).

¶16 In granting the State’s joinder motion, the trial court found

that the two “sets of charges” were “clearly based on the same conduct” 

and “connected together in their commission.” The record supports these

determinations. As Lua himself concedes, the “shooting charges and the 

misconduct involving weapons charges arguably arose out of ‘the same 

conduct’ and were ‘connected together.’ Lua was a prohibited possessor 

at the time he committed the shooting and it was the act of using the gun 

during the shooting that led to both the attempted murder and aggravated 

assault charges and the misconduct involving weapons charge.” The 

court instructed the jury:

Evidence was admitted through the Stipulation that the 

Defendant was previously adjudicated delinquent in 

juvenile court for a felony. Such evidence was not admitted 

and may not be considered to prove that he is a bad person 

or that he has a disposition to engage in criminal conduct. 

You may consider that evidence only as it relates to the 

charge of Misconduct Involving Weapon[s]. 

. . . .

Each count charges a separate and distinct offense. You 

must decide each count separately on the evidence with the 

law applicable to it, uninfluenced by your decision on any 

other count. You may find that the State has proved beyond 

a reasonable doubt, all, some, or none of the charged 

offenses. 

¶17 The trial court did not err by granting the State’s joinder 

motion. Nor did it fundamentally err by not subsequently acting sua 

sponte to sever the charges. We have previously held that Rule 13.4 “does 

not require the court to order a severance; it only gives it the discretion to 

do so on its own initiative.” State v. Longoria, 123 Ariz. 7, 10, 596 P.2d 

1179, 1182 (App. 1979); see also Rule 13.4(a) cmt. (“The two standards —

‘the court may on its own initiative, and shall on motion of a party’ — are 
STATE v. LUA

Decision of the Court

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intended to indicate the court’s power to act on its own authority to sever, 

but to remove any implication that it has a duty to search out all severance 

issues on its own, for fear of creating fundamental error.”). 

¶18 Even if Lua could demonstrate error, he has not established 

corresponding prejudice. “When a defendant challenges a denial of 

severance on appeal, he ‘must demonstrate compelling prejudice against 

which the trial court was unable to protect.’” State v. Murray, 184 Ariz. 9, 

25, 906 P.2d 542, 558 (1995). “[A] defendant is not prejudiced by a denial 

of severance where the jury is instructed to consider each offense 

separately and advised that each must be proven beyond a reasonable 

doubt.” State v. Johnson, 212 Ariz. 425, 430, ¶ 13, 133 P.3d 735, 740 (2006)

(internal citations omitted). The jury was so instructed here. 

III. Prosecutorial Vindictiveness

¶19 Due process protects a criminal defendant from 

prosecutorial decisions “motivated by a desire to punish him for doing 

something that the law plainly allowed him to do.” United States v. 

Goodwin, 457 U.S. 368, 384 (1982). Prosecutors may not punish defendants 

for exercising their legal rights by later subjecting them to more severe 

charges. Id. at 372. 

¶20 Lua did not claim prosecutorial vindictiveness in the trial 

court. Our review is thus limited to fundamental error. 

¶21 Nothing in the record supports Lua’s conclusory claim that

the State acted vindictively in charging him with weapons misconduct 

after his first trial ended in a mistrial. Lua did nothing to cause the 

mistrial, so there is no logical nexus between that occurrence and a 

purported vindictive reaction by the State. Nor is Lua entitled to a 

presumption of vindictiveness, which would shift the burden of proof to 

the State. He offers no “realistic likelihood of vindictiveness,” see State v. 

Mieg, 225 Ariz. 445, 448-49, ¶¶ 11-15, 239 P.3d 1258, 1261-62 (App. 2010), 

but only speculative claims about the prosecutor’s motives. We find no 

fundamental error arising from prosecutorial vindictiveness. 

IV. Witness Testifying in Prison Garb

¶22 Finally, Lua contends the trial court erred by denying a

motion to order jail personnel to provide an incarcerated defense witness 

with civilian clothes to wear while testifying. The motion Lua relies on 

was made in connection with his first trial. Lua does not identify where, if 

ever, he renewed his request in connection with his second trial. At best, 
STATE v. LUA

Decision of the Court

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we would review this claim for fundamental error. However, Lua did not 

argue fundamental error in his opening brief and has therefore waived the 

issue. See Moreno-Medrano, 218 Ariz. at 354, ¶¶ 16-17, 185 P.3d at 140; 

Watson, 198 Ariz. at 51, ¶ 4, 6 P.3d at 755. 

CONCLUSION

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

sentences.