Lead Opinion
OPINION
¶ 1 Francisco Javier Felix appeals his convictions and sentences on ten counts of attempted second-degree murder, ten counts of aggravated assault, one count of assisting a criminal street gang, and one count of endangerment. We vacate Felix’s convictions for attempted second-degree murder because the jurors were improperly instructed that they could convict Felix of that offense if they found that he attempted to cause death through conduct he knew would cause death or serious physical injury. We affirm Felix’s remaining convictions and sentences and remand for further proceedings.
BACKGROUND
¶ 2 We view the facts in the light most favorable to sustaining the jury’s verdicts and resolve all reasonable inferences against the defendant. State v. Vandever,
¶ 3 Felix, his girlfriend Heidy, and three other friends went to a bar in Yuma to celebrate a Mend’s birthday. While they were there, Heidy received phone messages from her cousin Elizabeth, inviting them to a party at Elizabeth’s house. Elizabeth also told Heidy to tell Felix that she did not want any trouble because she knew that Felix was a member of the East Side Naked City gang.
¶ 4 The group arrived at the house at approximately 2:30 a.m. and found the party underway, with approximately 15-20 people in the house. Heidy and Felix went into the bathroom. When they came out, someone who appeared to be waiting for Felix immediately began punching his face and body. Others joined in and beat Felix to the ground. At some point, one of the people hitting Felix yelled “Okie” or “Okie Town,” referring to a rival gang. When Heidy stepped in to help Felix, the person who had initially hit Felix told his friends to “jump her,” and several people started hitting and beating Heidy. Felix and Heidy fled the house, but the others followed them and continued to attack. When Elizabeth’s boyfriend Steve noticed that Heidy was being hurt, he told everyone to leave and stated he was going to call the police.
¶ 5 Felix, Heidy, and their friends returned to their vehicle. Felix was bleeding, his clothes were ripped, and one of his eyes was badly bruised, but he refused to go to the hospital. On their drive home, Felix took Heidis phone and called someone to say he had been “beat up really bad” and that “they were going to do something about it.” He told the person that he needed a ride and asked to be picked up. Felix also stated he needed to “get these mother f — ers” and asked the person to “pick up a toy or get a toy” — common gang terminology for a gun.
¶ 6 When Felix and Heidy arrived at their home, Felix did not go inside, but asked Heidy for Elizabeth’s address. A friend and fellow East Side Naked City gang member picked Felix up in a car at about 4:30 a.m.
¶ 7 Around 5:00 a.m., a shooter approached the front of Elizabeth and Steve’s house on foot and fired nine large-caliber high-velocity bullets in multiple bursts from an AK-47 into the house. While firing, the shooter changed locations at least one time. Steve, Elizabeth, their sixteen-month-old baby, J.V., and seven of Steve’s Mends were inside at the time. No one was injured by the shots.
¶ 8 Two neighbors heard the gunshots and observed a vehicle with male occupants and a male figure running toward the vehicle as it sped away, but neither witness could identify the individuals. After the shooting, Felix told Heidy that he had given her cousin’s address to his Mends and that they had “shot up” her cousin’s house.
¶ 9 The police investigation led to Felix as the suspected shooter and the State charged him with nine counts of attempted first-degree murder, one count of attempted first-degree murder of a juvenile, nine counts of
¶ 10 The trial court sentenced Felix to concurrent terms of 12 years’ imprisonment on each of the attempted second-degree murder convictions, and a concurrent term of 3.5 years’ imprisonment for assisting a criminal street gang. On each of the aggravated assault offenses with adult victims, the trial court sentenced him to concurrent terms of 10 years’ imprisonment. For the aggravated assault conviction involving J.V., a dangerous crime against children, the court sentenced Felix to a consecutive term of 15 years’ imprisonment. The court sentenced Felix to time served on the endangerment offense. Felix timely appeals.
ANALYSIS
¶ 11 Felix raises four arguments: (1) the trial court gave incorrect instructions on attempted second-degree murder and accomplice liability; (2) there was insufficient evidence to support his conviction of aggravated assault against J.V.; (3) the trial court incorrectly ordered consecutive sentences based on its finding that the aggravated assault against J.Y. was a dangerous crime against children; and (4) the trial court abused its discretion when it admitted photographs of a stuffed gorilla and a crib with bullet holes in them.
I. Improper Jury Instruction on Attempted Second-Degree Murder
¶ 12 The trial court instructed the jury on attempted first-degree premeditated murder and, without objection, instructed the jury as follows regarding the lesser-ineluded offense of attempted second-degree murder:
The crime of second degree murder requires proof of one of the following.
The defendant or an accomplice attempted to intentionally cause the death of another person; or, two, the defendant or an accomplice attempted to knowingly cause the death of another person by conduct which the defendant knew would cause death or serious physical injury.
(Emphasis added.)
¶ 13 Felix challenges the portion of the instruction permitting the jury to return a guilty verdict on the alternative showing that Felix knew that his conduct “would cause death or serious physical injury." He did not object to the instruction at trial, and we are therefore limited to fundamental error review on appeal. State v. Henderson,
A. Fundamental Error
¶ 14 “[Instructing a jury on a nonexistent theory of criminal liability is fundamental error.” State v. Dickinson,
B. Prejudice
¶ 15 Fundamental error alone is not, however, sufficient grounds for reversal. Id. at 531, ¶ 13,
¶ 16 “Prejudice is a fact-intensive inquiry, the outcome of which will depend upon the type of error that occurred and the facts of the particular case.” Dickinson,
¶ 17 The State argues that the erroneous “serious physical injury” portion of the instructions did not affect the jury’s deliberations, but our supreme court has repeatedly stated that we should presume that jurors follow the instructions provided to them. State v. Payne,
¶ 18 The State further argues that because it advanced a theory of the case inconsistent with the shooter merely knowing that his conduct would cause serious physical injury, the jury’s attention was not focused on the “serious physical injury” language and the instruction was therefore not prejudicial to Felix. We note that, although “arguments of counsel generally carry less weight with a jury than do instructions from the court,” Boyde v. California,
¶ 19 The State’s theory throughout the case was that Felix, acting with premeditation, intended to kill all of the individuals inside the house when he fired the AK-47 at the house from short range. In his opening statement, the prosecutor stated that Felix was out to get “revenge” for being beaten and embarrassed earlier that night. The prosecutor argued that the evidence would show Felix “emerged from the vehicle, walked up to the home, knowing that there was [sic] people still within that home ... walked in front of that home with an AK-47 or an SKS, a high powered assault rifle, and stood before that home, and finished his plan.” During trial, the State’s evidence established that the home was a modular home with thin walls. The type of high-powered semi-automatic weapon used would shoot through “multiple structures and multiple walls,” was “only made for going through and destroying things,” and the majority of the bullets were fired at the level of the “chest or stomach area ... more of the lower belt buckle up to about the neck region,” a height
¶ 20 Although the prosecutor did not argue for a conviction based on “serious physical injury” and did not call specific attention to the faulty language in the instruction, his arguments seeking a conviction for attempted first-degree murder addressed Felix’s culpable mental state, i.e. his alleged premeditation. The jury rejected the prosecutor’s argument that Felix acted with premeditated intent to kill and chose instead to convict Felix of attempted second-degree murder, which involves a less culpable state of mind. The instructions pertinent to that lesser-included offense included the erroneous definitional language. Because the jurors rejected premeditation, they presumably reviewed carefully the language describing the required mental state for the charged offense and the lesser-included offense of attempted second-degree murder, including the erroneous language. We therefore reject the State’s contention that its vigorous pursuit of first-degree murder convictions compels the conclusion that the “serious physical injury” language could not have prejudiced Felix.
¶ 21 We also find unpersuasive the State’s assertion that defense counsel’s argument did not implicate the erroneous instruction. Although defense counsel’s primary argument was that Felix was not present and had an alibi, counsel also asserted in closing an alternative defense based on the mindset of the shooter. Defense counsel specifically argued that whoever did the shooting did not plan his shots like a person who really had the intent to kill:
Mr. Felix wasn’t there, but the shooter who was there had no way of knowing that his or her actions would kill anybody, and in some ways you can see by the results nobody was killed or even hit.
I would ask you to look at Exhibit No. 120 when you get back and start deliberations, and that’s a photograph of the house, and you can see and we talked about it, Deputy S- testified that’s what the house looked like when they showed up. The blinds were down, the door was closed, the blinds in the living room were also down. Somebody was there shooting at that house, they would not have seen anybody. The one window that went — that was right there on the corner, there were no lights on in there. There was still a party going on. At that time, there were nine people in there playing beer pong. Person would have probably heard those people, would have known that people were there, would have gone towards the middle where the living room was. That’s where, if you’re gonna go and kill somebody, that’s where at that time you would have been. That’s where you would have gone to shoot, where the people were. The people that you could hear, the people that you knew were there, would have been able to see some light in the house, that’s where you’re gonna go. Not gonna stand at one corner where it’s dark and quiet and shoot there. There’s a party going on, you can see all those ears out there, that’s not where you’re gonna go.
The defense attorney further argued that the shooter acted only recklessly, rather than intentionally:
[Tjhat’s the floor plan that we got with some of those drawings of where the bullets went. The person right there who took those shots, shot them all in the same direction.
If someone was intending to kill everybody at that house, knowing that they were gonna kill everybody at that house, they would have spread those shots out. But you’ll see that all of those shots, almost all of those shots go almost in an exact straight line. There are a couple of strays, but whoever it was shot directly in one line, and that’s not something that you’re gonna do to try and kill everybody in the house. It doesn’t make sense.
Now, you did get an instruction on recklessly, and I’m gonna read it to you, but it says recklessly means that a person is aware of and consciously disregards a sub*287 stantial and unjustifiable risk that the result will occur or that the circumstances exist. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe, and that’s what this is. This is not intentionally trying to kill somebody — I mean there’s a statute about shooting at a residence — but this is someone shooting away from where the people in the house are, not targeting anybody, not aiming at anybody. Detective G- told us, you can’t hit something that you don’t aim at. This is not an intentional crime or a knowing crime. It is not an attempted, murder of any kind. Shooter could not see anyone, he or she would not know or intend that his actions will cause death. That’s the way it is. And if the action’s reckless, then you cannot convict Mr. Felix or anyone else of attempted first or second-degree murder.
(Emphasis added.) Although defense counsel did not mention the serious physical injury portion of the jury instructions, his alternative argument surely drew the jury’s attention to the question of what culpable mental state was required for conviction and may have prompted the jurors to consider and apply the mistakenly included “serious physical injury” option.
¶ 22 Finally, although the evidence was sufficient to support the convictions for attempted second-degree murder, the sufficiency of the evidence is not the test of whether the fundamentally erroneous jury instruction prejudiced Felix. Nor is the test whether this court thinks another jury, properly instructed, will probably find Felix guilty again. Rather, the test is whether a reasonable jury, properly instructed, could have found Felix not guilty of attempted second-degree murder. See James,
¶ 23 We respectfully disagree with our dissenting colleague on the question of prejudice. The dissent cites Dickinson,
¶ 24 In our view, the evidence can be seen to establish any one of three things: (1) reckless conduct by the shooter (particularly in light of the absence of evidence that he knew where people were in the house), (2) an intent to seriously injure the people in the house, or (3) an intent to kill the people in the house. In light of the erroneous instruction, the jurors could have stopped deliberations after concluding that Felix intended to cause serious physical injury. Thus, we can
¶ 25 We therefore hold, based on the particular facts of this case, that Felix has established prejudice from the fundamental error in the jury instruction. See Henderson,
II. Accomplice Liability Instruction
¶ 26 The indictment charged that Felix or an accomplice “intentionally put another person in reasonable apprehension of immediate physical injury.” Because no direct evidence identified the shooter, the trial court instructed the jury on accomplice liability as follows:
Accomplice means a person, who, with the intent to promote or facilitate the commission of the offense, does any of the following:
One, solicits or commands another person to commit the offense; or, two, aids, counsels, agrees to aid, or attempts to aid another person in planning or committing the offense; or, three, provides means or opportunity to another person to commit the offense.
A defendant is criminally accountable for the conduct of another if the defendant is an accomplice of such other person in the commission of the offense, including any offense that is a natural and probable or reasonably foreseeable consequence of the offense for which the person was an accomplice.
Felix argues for the first time on appeal that this instruction was erroneous regarding the aggravated assault counts because it “could have misled the jury into rendering guilty verdicts for reasonable apprehension assaults even if [Felix] did not have the mens rea of intent.” Felix’s failure to object to the instruction at trial limits our review to fundamental error. Henderson,
¶ 27 The trial court’s accomplice liability instruction was based on the statutory definition of “accomplice,” see A.R.S. § 13-301, and the statutory description of accomplice liability, see § 13—303(A)(3). Felix nevertheless maintains that, because the prosecutor argued Felix need not be the actual shooter to be held responsible as an accomplice to the shooter, the jury “could have used the instruction to conclude that [he] did not have to have the intent to place the victims in reasonable apprehension, as long as the shooter had such an intent and as long as the offense was reasonably foreseeable as far as [he] was concerned.” He argues that this indicates that the jurors might have believed that he “could have been found liable for the intentional acts of his accomplice” even if he only had a mens rea of “recklessness,” and suggests that this misapprehension influenced both the attempted second-degree murder and aggravated assault convictions.
¶ 28 Contrary to Felix’s argument, however, the instruction included the important language emphasizing that an accomplice is a person who, “with the intent to
III. Aggravated Assault of J.V.
¶ 29 The State charged that Felix committed the aggravated assault of J.V., Steve and Elizabeth’s 16-month-old daughter, when Felix intentionally placed the child in reasonable apprehension of immediate physical injury using a deadly weapon. The State also charged that the offense was a dangerous crime against children. The jury found Felix guilty of the offense as charged and also that the offense was a dangerous crime against children. On appeal, Felix argues that the State presented insufficient evidence to sustain either this conviction or the jury’s finding that the crime is a dangerous crime against children.
¶ 30 “[The] question of sufficiency of the evidence is one of law, subject to de novo review on appeal.” State v. West,
¶ 31 Felix first maintains that the State presented no evidence that J.V. experienced “reasonable apprehension” of physical injury. Felix does not dispute that an assault rifle was fired into the house where J.V. was present, but asserts that, by virtue of her age, J.V. could not have had fear of sounds outside her vision, even the sounds of gunshots. The evidence does not support Felix’s assertions.
¶ 32 Either direct or circumstantial evidence is sufficient to prove that a defendant placed a victim in “reasonable apprehension of immediate physical injury.” See Bible,
¶ 34 Felix relies on our supreme court’s decision in State v. Williams,
¶ 35 Unlike the defendant in Williams, however, Felix admitted that although he did not see the baby during the party that night, he knew that J.V. lived at the house with Steve and Elizabeth when the house “was shot up.” He was therefore aware that by indiscriminately shooting an assault rifle into the house at 5:00 a.m., he would be directing his fire at the baby, who, as one occupant of the house, was likely to be home and asleep at that hour of the morning. See, e.g., Miranda-Cabrera,
IV. Consecutive Sentence for Dangerous Crime against Children
¶ 36 Felix also argues for the first time that the trial court committed fundamental error by imposing a consecutive sentence for this offense. He maintains that, because the attempted second-degree murder offenses and the aggravated assault offenses in this case “arose out of the same act of shooting into the house,” the double punishment statute, A.R.S. § 13-116, prohibits consecutive sentences for an act punishable in different ways by different sections of the law. The Arizona Supreme Court’s recent opinion in State v. Jones,
V. Admission of Photographs
¶ 37 Before trial, Felix sought to preclude the State from presenting photographs of a crib with bullet damage and a stuffed gorilla with a bullet hole in it. Felix argues that they had no probative value and were being admitted to improperly inflame the jury. According to defense counsel, they were not relevant to the only question for the jury to
¶ 38 We review a superior court’s ruling on the admissibility of evidence, including photographic evidence, for abuse of discretion. State v. Aguilar,
¶ 39 The State argued that, to support the allegations of attempted murder and of dangerous crimes against children, the photographs were necessary to show both that the trajectory of the bullets was at a level that could have been lethal to the home’s occupants and that a child resided in the home. The trial court here reviewed the photographs and engaged in the proper balancing analysis. See Ariz. E. Evid. 401, 403. The photographs were relevant to show the potential harm to the inhabitants and to confirm the presence of a child in the house. Furthermore, Felix does not allege that the State used the photographs in an improper fashion, and we find no evidence to support such a claim. On this record, including the photographs themselves, we conclude the trial court did not abuse its discretion by admitting them over Felix’s objection. See Aguilar,
CONCLUSION
¶ 40 For the foregoing reasons, we vacate Felix’s convictions for attempted second-degree murder and remand for a new trial. We affirm all of Felix’s other convictions and sentences.
Notes
. We decline the State's request to overrule Ontiveros as wrongly decided. Ontiveros was decided in 2003. The "Ontiveros error” is the inclusion of the "serious physical injury" language from the elements of second-degree murder when marrying the definition of "attempt” with second-degree murder. This error continues to be made far too often. See, e.g., State v. Juarez-Orci,
. Although Felix's failure to object that the aggravated assault does not qualify as a dangerous crime against children limits our review to fundamental error, see Henderson,
Concurrence Opinion
Concurring in Part and Dissenting in Part.
¶ 41 I concur in the Majority’s affirmance of Felix’s convictions and sentences for aggravated assault, assisting a criminal street gang, and endangerment. I also agree that the attempted second-degree murder instruction was fundamental error. This Court has repeatedly held that the instruction is erroneous because it does not require that the jury determine whether the defendant intended to kill — the mens rea for attempted second-degree murder — but allows a conviction based on a lesser mens rea — that the defendant merely knew that his conduct would cause serious physical injury. See State v. Ontiveros,
¶ 42 But I cannot agree that the error justifies reversing Felix’s attempted second-degree murder convictions. “It is the rare ease in which an improper [jury] instruction will justify reversal ... when no objection has been made in the trial court.” Dickinson,
¶ 43 Considering these factors, Felix cannot show that the jurors could have found him not guilty of attempted second-degree murder had they not been misinstructed that knowingly causing serious physical injury satisfied the mens rea requirement of the offense. The evidence leaves no doubt that the shooter intended to kill and not merely to cause serious physical injury. The evidence established that the shooter shot nine times at the victims’ house using a high-powered semi-automatic AK-47 rifle loaded with large caliber high-velocity bullets. The victims’ house — a mobile/modular home — was little protection from the assault; an AK-47 was “only made for going through and destroying things” and would go through “multiple structures and multiple walls.” The shooter also shot at the house from close range, changed positions in front of the house at least once, and fired the rifle at the level of the “chest or stomach area ... more of the lower belt buckle up to about the neck region” — a height most likely to kill. Nothing in the evidence presented at trial would allow the jurors to find that the shooter intended only to cause serious physical injury.
¶ 44 The State never mentioned the serious physical injury language in the jury instruction, and its theory of the ease was solely that Felix was the shooter and that he premeditatedly intended to kill the individuals inside the house. In its opening statement, the State stated that Felix was out to get “revenge” for being beaten and embarrassed and that the evidence would show that he “emerged from the vehicle, walked up to the home, knowing that there was [sic] people still within that home ... walked in front of that home with an AK-47 or an SKS, a high powered assault rifle, and stood before that home, and finished his plan.”
¶ 45 The State maintained this theory in its closing argument after the presentation of the evidence. The State contended that Felix fired nine rounds into the home aimed specifically at the waist to neck level to maximize the chance of a hit:
[T]hese shots weren’t fired randomly into this home. The evidence shows that these shots were fired in such a way as to maximize the chance that someone would be hit. And when we’re talking about a round from a military assault rifle, a hit means— is likely to mean death.
He fired the powerful rifle nine times into the home ... not into the walls of the yard, not into the cars and not into the roof, but waist to neck level into that home. And he did it from a standing position, not a speeding car, and a reasonable inference from that is because he wanted to be able to place his shots; he wanted to be able to control where that automatic rifle was firing. The intent inference, you all know the intent inference. You’ve heard it a thousand times. Actions speak louder than words. Certainly it would be great to have a case in which you had testimony where someone is running up to someone, I’m intending to kill you. But it’s rare that you get cases like that, and the law does not require that a defendant make a formal pronouncement, I’m here to kill everyone in this structure. No. Actions speak louder than words. The facts and the circumstances behind this case show what they were attempting to do, or at the very least, knew what could happen when they did it. Knowingly shooting repeatedly into an occupied home and kill people.
The State never deviated from the argument that Felix intended to kill the persons in the house in retaliation for having been injured and embarrassed by rival gang members in front of his girlfriend and friends. The State’s argument did not implicate at all the instruction’s serious physical injury language.
¶ 47 The evidence and arguments of counsel focused only on whether Felix was the shooter and whether the shooter intended to kill. Nothing in the evidence or arguments gave the jurors the occasion to consider whether Felix merely knew that his actions would cause serious physical injury. Because the erroneous part of the jury instruction did not come into play, I find that Felix cannot show any prejudice from the error, and his convictions for attempted second-degree murder should be affirmed.
¶ 48 This is not a case like Ontiveros, where the defendant, Ontiveros, admitted that he shot the victim but denied that he shot him in the face or head,
¶ 49 This ease is little different than Dickinson. There, the evidence showed that the defendant, Dickinson, used his truck to run down and run over his victim, who was riding his bicycle. Id. at 529 ¶¶ 5-6,
¶ 50 On appeal after conviction for attempted second-degree murder, we agreed with Dickinson that the attempted second-degree murder instruction was fundamental error, id. at 530 ¶ 12,
The State’s theory was that Dickinson intended to kill the victim; Dickinson’s defense was mistaken identity and that he was not involved in the charged conduct in any respect. Neither of these competing views suggests that Dickinson intended to cause serious injury to the victim (as opposed to kill him), which is the fundamental error in the jury instructions.
Id. at 532 ¶ 22,
¶ 51 Although the Majority finds otherwise, its reasons are — with respect — unpersuasive. The Majority first finds that the jurors must have considered the instruction’s erroneous language because the trial court read the instruction to them and provided them a written copy of the instruction, and the jurors were presumed to read and follow
¶ 52 The important consideration is not whether the jurors read the erroneous language of an instruction — I have no doubt that they read and heard the words “or serious physical injury” in the attempted second-degree murder instruction — but whether the evidence and counsels’ arguments required them to consider that language in determining whether Felix committed attempted second-degree murder. The jurors were instructed that as they determined the facts of the ease, “you may find that some of the instructions no longer apply. You must then consider the instructions that do apply....” Because the evidence did not show that Felix shot at the mobile home with an AK-47 only to cause serious physical injury, and neither the State or Felix’s own counsel so argued, the jurors had no occasion to consider the erroneous language.
¶ 53 The Majority also finds that the jurors considered the “or serious physical injury” language because they considered and rejected the State’s argument that Felix acted with premeditation when he intentionally shot at the mobile home. See supra ¶ 19. The jurors’ decision that the State had not proved premeditation does not, however, mean that they considered whether Felix merely knew that his actions would cause serious physical injury. No evidence presented at trial would allow the jurors to find that Felix merely knew that his shooting at the house with an AK-47 rifle loaded with large caliber high-velocity bullets would cause serious physical injury, and the State and Felix’s counsel never discussed serious physical injury in their opening or closing arguments. The fact that Felix’s mental state was at issue does not mean — without more — that the jurors considered the instruction’s erroneous language.
¶ 54 The Majority further argues that the jurors considered the serious physical injury language because Felix’s counsel argued that whoever the shooter was, the shooter did not intend to kill, which put Felix’s mental state at issue. See supra ¶¶ 20-21. In addition to arguing that Felix was not the shooter, Felix’s counsel did indeed argue that the shooter did not intend to kill. He claimed that the shooter shot into areas of the house that had no lights on and shot in a pattern that a shooter would not use to “try and kill everyone in the house.” From this premise, Felix’s counsel argued that the shooter acted recklessly, which meant that the. crime was “not an attempted murder of any kind.”
¶ 55 Although counsel’s argument clearly implicated the mental state of the shooter— whether Felix’s or someone else’s — it did not require the jurors to consider the serious physical injury language. Felix’s counsel never mentioned that language and in fact referred the jurors to an entirely different instruction — the instruction defining recklessness. The erroneous language had no relevance to counsel’s argument. Counsel did not argue that the shooter did not intend or know that the act of shooting would cause serious physical injury. Nothing in counsel’s specific argument on lack of intent offered the jurors an occasion to consider the serious physical injury language.
¶ 56 The Majority concedes that the State did not rely on the serious physical injury language as a theory of guilt at trial and that Felix’s counsel never addressed that language either. The Majority’s finding that the language nevertheless prejudiced Felix rests on its belief that because Felix’s mental state was at issue and the serious physical injury language was listed in the instruction as a possible mental state that would support conviction for attempted second-degree murder, the jurors could have relied on it to convict Felix. But nothing in the evidence or argument of counsel gave the jurors any occasion to consider that language in determining whether Felix was guilty of attempted second-degree murder. The record does not support the Majority’s finding of prejudice.
¶ 57 Although the serious physical injury language of the attempted second-degree murder instruction was undoubtedly errone