State of Arizona v. Jose Raul Juarez-Orci, 236 Ariz. 520

Defendant Jose Juarez-Orci attacked his wife J. with a drywall knife during a post-separation confrontation; she suffered multiple serious lacerations including a potentially lethal neck wound and an 8.5 cm facial laceration.
DNA and blood evidence tied the bent, blood-stained drywall knife and defendant’s clothing to the scene; defendant admitted stabbing his wife to a friend.
Defendant was tried and convicted by a jury of attempted second-degree murder (lesser-included of attempted first-degree murder) and multiple counts of aggravated assault; burglary was left undecided by the jury.
The contested jury instruction defined attempted second-degree murder by reference to attempt statute language and then defined second-degree murder to include either intentional killing or causing death by conduct the defendant knew would cause death or serious physical injury.
Defendant did not object at trial to the instruction; he later argued on motion for new trial (and on appeal) that the instruction erroneously allowed conviction for attempted second-degree murder based on intent/knowledge merely to cause serious physical injury.
The court of appeals held the instruction was erroneous under controlling precedent, that the error was fundamental, and that prejudice could not be discounted; it reversed the attempted second-degree murder conviction and affirmed the other convictions and sentences.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury instruction improperly permitted conviction of attempted second-degree murder based on intent/knowledge to cause serious physical injury	Instruction read as a whole required belief the conduct would "end in the commission of second-degree murder," so jurors could not convict on mere intent to cause serious injury; "serious physical injury" language was surplus	Instruction allowed conviction on a non-existent theory (intent to cause serious physical injury), contrary to Ontiveros; this relieved the State of proving intent to kill	Court held the instruction erroneous: it could have allowed conviction based on intent/knowledge only to cause serious physical injury, contravening Ontiveros; reversal of that conviction required
Whether the instructional error was fundamental and prejudicial requiring reversal despite lack of timely objection	State argued error did not require reversal because reading instructions in context removed the improper theory; trial evidence and arguments overwhelmingly showed intent to kill	Error was fundamental because it authorized conviction on a non-existent theory; prejudice established because a reasonable properly instructed jury could have reached a different result given defense focus on no intent to kill	Court held the error was fundamental and prejudicial; reversed attempted second-degree murder conviction and remanded for further proceedings on that charge

State v. Ontiveros, 206 Ariz. 539 (App. 2003) (no offense of attempted second-degree murder based on knowing conduct will cause serious physical injury)
State v. Dickinson, 233 Ariz. 527 (App. 2013) (instruction permitting attempted second-degree murder based on intent/knowledge to cause serious physical injury is erroneous)
State v. Henderson, 210 Ariz. 561 (2005) (standard for forfeiture and review of fundamental error)
State v. Cox, 217 Ariz. 353 (2007) (jury instruction review is de novo; instruction must be substantially free from error)
State v. James, 231 Ariz. 490 (App. 2013) (instructing jury on a non-existent theory of liability is fundamental error)
State v. Kemper, 229 Ariz. 105 (App. 2011) (error that relieves State of proving an element goes to the foundation of the case)