STATE OF ARIZONA v. RICKY ALONZO HIPPENSTEEL (2025)

OPINION

¶1 Ricky Alonzo Hippensteel appeals from his conviction and sentence for second-degree murder. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the verdicts. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1 n.1 (App. 2019). In June 2021, Hippensteel took two men inquiring about a missing tractor to the location of the victim (“Victim”) because Hippensteel had previously seen Victim with the tractor. Hippensteel left the two men parked at the property entrance and went inside. Multiple residents heard Hippensteel say “there might be a murder on [the] property,” and “I'm going to kill the son of a bitch.” Some of the residents saw Hippensteel holding a knife.

¶3 Hippensteel found Victim, and they argued about the tractor. The argument escalated into a physical fight. Victim sustained knife wounds in his neck and chest, and Hippensteel had a knife wound on his hand. Victim later died from his injuries. Throughout the next day, Hippensteel hid from police, fled from a pursuing police officer on a motorcycle, and continued to run on foot when his motorcycle broke down. The State charged Hippensteel with first-degree murder, aggravated assault, unlawful flight from law enforcement, and resisting arrest.

¶4 Hippensteel was tried over eleven days in February 2023. Several residents of the property where Victim and Hippensteel fought testified about what they saw and heard, including that Hippensteel arrived at the property carrying a knife and threatened “to kill [Victim],” that Victim was asleep when Hippensteel approached Victim's trailer, and that after Hippensteel stabbed Victim, he said something like “[t]his is what you get for stealing my shit, punk.”

¶5 Hippensteel testified in his own defense. He said that Victim was working with a knife when Hippensteel approached him, and Victim instigated the fight by waving the knife around. Hippensteel said he sustained a defensive wound on his hand from attempting to stop Victim from stabbing him. Hippensteel said multiple times that he did not realize that Victim had been stabbed, but ultimately conceded it was possible that he stabbed Victim.

¶6 When discussing jury instructions, the superior court asked Hippensteel's counsel if he was requesting any lesser-included offense instructions. Hippensteel's counsel responded affirmatively and said he wanted second-degree murder, manslaughter, and negligent homicide lesser-included offense instructions. Before reading the instructions to the jury, the court asked both parties if they objected to the proposed instructions; neither party objected. As part of the second-degree murder lesser-included offense instruction, the court instructed the jury:

If you find the elements of second-degree murder proven beyond a reasonable doubt, you must consider whether the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim. If you unanimously find that the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim, then you must find the defendant guilty of manslaughter rather than second-degree murder.

See infra Attachment A.

¶7 The court also instructed the jury on “Lesser-Included Offense-Manslaughter,” known as a “reasonable efforts” instruction under State v. LeBlanc, 186 Ariz. 437, 438 (1996) as follows:

You may consider the lesser offense of manslaughter if either 1. You find the defendant not guilty of both first and second-degree murder or 2. After full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of “first-degree murder” or “second-degree murder.”

The crime of manslaughter can be committed two ways. The first is “reckless manslaughter.” Reckless manslaughter requires proof that the defendant recklessly caused the death of another person. The second way to commit “manslaughter” is manslaughter by sudden quarrel or heat of passion.

See infra Attachment A.

¶8 The verdict form for the first-degree murder count presented first-degree murder, second-degree murder, manslaughter, and negligent homicide—in that order. The manslaughter portion of the verdict form stated:

Lesser-Included Offense Verdict on “Manslaughter”: If you find the defendant “Guilty” of “First-Degree Murder” or “Guilty” of “Second Degree-Murder,” do not complete this portion of the verdict form. In other words, complete this portion only if you find the defendant either “Not Guilty” of both “First-Degree Murder” and “Second Degree Murder” or are unable to decide.

See infra Attachment B.

¶9 The jury found Hippensteel guilty of second-degree murder—as a lesser-included offense of first-degree murder—unlawful flight, and resisting arrest. After the verdicts were read, Hippensteel's counsel told the court that the verdict form should have required the jury to separately indicate whether it considered provocation manslaughter. The court responded that the jury instructions were proper and took no further action on the issue. The jury found the State had proven an aggravating circumstance for the second-degree murder conviction. The court sentenced Hippensteel to multiple concurrent prison terms, including 19 years for the second-degree murder conviction, with 672 days of presentence incarceration credit.

¶10 Hippensteel timely appealed his second-degree murder conviction and sentence. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) Sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶11 Hippensteel argues the superior court committed fundamental, prejudicial error by providing incorrect jury instructions and verdict forms for provocation manslaughter. We note that Hippensteel asked the court to instruct the jury on “manslaughter” as a lesser-included offense and then agreed to the court's proposed jury instructions. We asked the parties to brief whether, by doing so, Hippensteel invited the error. Both parties said he did not. We agree. “[A] party invites an erroneous jury instruction by expressly requesting it,” which did not occur here. State v. Lucero, 223 Ariz. 129, 136, ¶ 20 (App. 2009). Hippensteel requested “manslaughter,” but did not specifically request the reasonable efforts provocation manslaughter instruction he now challenges. He thus did not invite any error.

¶12 After the jury rendered its verdict, Hippensteel asserted for the first time that the verdict form should have instructed the jury to indicate a determination on provocation manslaughter before deciding whether he was guilty of second-degree murder. But as Hippensteel concedes, this was not a timely objection. See Ariz. R. Crim. P. 21.3(b) (stating any objections to instructions or verdict forms “must be made before the jury retires to consider its verdict”); see also State v. Larin, 233 Ariz. 202, 208, ¶ 14 (App. 2013). We therefore review for fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). Hippensteel must establish that error exists, that the error was fundamental, and that the error was prejudicial. Id. at 142, ¶ 21.

I. The jury instructions and verdict form contained error.

¶13 Hippensteel argues the court erred by including a reasonable efforts jury instruction for provocation manslaughter, and “[c]ompound[ed] this error with a verdict form that instructed the jurors [to] stop at second-degree murder.” The State initially said in its Answering Brief that a reasonable efforts instruction should not be given when a “defendant is charged with second-degree murder, but there is evidence to support [ ] provocation manslaughter.” When asked to address the issue in supplemental briefing, however, the State argued that no error occurred because the correct instruction preceded the incorrect instruction.

¶14 Determining whether trial error exists is the first step in fundamental error review. Escalante, 245 Ariz. at 142, ¶ 21. We review jury instructions and verdict forms de novo. State v. Zaragoza, 221 Ariz. 49, 53, ¶ 15 (2009) (jury instructions); State v. Dann, 220 Ariz. 351, 366, ¶ 70 (2009) (verdict forms). “We evaluate jury instructions and verdict forms as a whole to determine whether they correctly stated the law, allowed the jury to understand the issues, and provided the jury with the correct rules for reaching a decision.” Lohmeier v. Hammer, 214 Ariz. 57, 61, ¶ 13 (App. 2006).

¶15 The final jury instructions included two opportunities for the jury to consider whether Hippensteel was guilty of provocation manslaughter—first, as a less serious offense of second-degree murder, and second, if after reasonable efforts it could not reach a verdict on second-degree murder, as a lesser-included offense (the “reasonable efforts provocation manslaughter instruction”). For provocation manslaughter as a less serious offense, the jury was instructed as a part of the second-degree murder instruction:

If you find the elements of second-degree murder proven beyond a reasonable doubt, you must consider whether the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim. If you unanimously find that the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim, then you must find the defendant guilty of manslaughter rather than second-degree murder.

(emphasis added). This instruction is correct under State v. Lua, 237 Ariz. 301, 306, ¶ 20 (2015).

¶16 But the jury was also provided a reasonable efforts provocation manslaughter instruction, as emphasized below:

You may consider the lesser offense of “manslaughter” if either: 1. You find the defendant not guilty of both “first-degree murder” and “second-degree murder”; or 2. After full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of “first-degree murder” or “second-degree murder.”

The crime of manslaughter can be committed in two ways. The first is “reckless manslaughter.” Reckless manslaughter requires proof that the defendant recklessly caused the death of another person. The second way to commit “manslaughter” is manslaughter by sudden quarrel or heat of passion.

It was error to include provocation manslaughter under this reasonable efforts jury instruction.¹

¶17 Reasonable efforts instructions should only be provided for lesser-included offenses. LeBlanc, 186 Ariz. at 438 (the “jury may deliberate on a lesser offense if it either (1) finds the defendant not guilty on the greater charge, or (2) after reasonable efforts cannot agree whether to acquit or convict on that charge”). Reckless manslaughter is a lesser-included offense of first- and second-degree murder and therefore was properly included. See State v. Valenzuela, 194 Ariz. 404, 407, ¶ 13 (1999). But because provocation manslaughter is not a lesser-included offense of second-degree murder—it is instead a less serious offense—it was error to include it after the reasonable efforts instruction. See Lua, 237 Ariz. at 303, ¶ 7 (provocation manslaughter is not a lesser-included offense because it “has the same (not fewer) elements as second-degree murder, with the added mitigating ‘circumstance’ of adequate provocation.”).

¶18 To the extent the verdict form language tracked the incorrect reasonable efforts provocation manslaughter jury instruction, that was also error. The verdict form presented first-degree murder, then second-degree murder, and then manslaughter. The jury checked “Not Guilty” as to first-degree murder. The jury checked “Guilty” as to second-degree murder. The first paragraph of the next page of the verdict form stated:

Lesser-Included Offense Verdict on “Manslaughter”: If you find the defendant “Guilty” of “First-Degree Murder” or “Guilty” of “Second-Degree Murder,” do not complete this portion of the verdict form. In other words, complete this portion only if you find the defendant either ‘Not Guilty’ of both “First-Degree Murder” and “Second Degree Murder” or you are unable to decide.”

See infra Attachment B. The verdict form then included a line for the jury to indicate if it was convicting on reckless manslaughter, which was correct because it is a lesser-included offense of second-degree murder. But it also provided a line for the jury to indicate if it was convicting on provocation manslaughter, which was error because provocation manslaughter is a less serious—not lesser-included—offense of second-degree murder and thus improperly followed the reasonable efforts language.

¶19 For the reasons discussed below, however, Hippensteel was not prejudiced by these errors because the jury necessarily had to consider provocation manslaughter before finding Hippensteel guilty of second-degree murder. And because the jurors found Hippensteel guilty of second-degree murder, their deliberations stopped at second-degree murder—which is precisely what the jury instructions and verdict form told them to do.

II. Hippensteel has not established fundamental, prejudicial error.

¶20 Hippensteel argues the error was fundamental and prejudicial because the jury was not properly instructed on provocation manslaughter. The State responds that the second-degree murder instruction correctly told the jury that it could not find Hippensteel guilty of second-degree murder without first considering whether he was adequately provoked.

¶21 The second step in fundamental error review is to consider whether the error was fundamental. Escalante, 245 Ariz. at 142, ¶ 21. But even if we assume the error was fundamental, Hippensteel has not met his burden of proving prejudice, the final step.

¶22 Determining prejudice requires a fact-intensive inquiry, the outcome of which will “depend[ ] upon the type of error that occurred and the facts of a particular case.” State v. Rios, 555 P.3d 60, 66, ¶ 24 (App. 2024) (quoting State v. James, 231 Ariz. 490, 494, ¶ 15 (App. 2013)). Prejudice concerns the “impact of the error on the jury's verdict.” Escalante, 245 Ariz. at 143, ¶ 28. Hippensteel must show “a reasonable jury ․ could have reached a different [verdict].” Id. at ¶ 29 (quoting State v. Henderson, 210 Ariz. 561, 569, ¶ 15 (2005)). The “could have” standard is not easily satisfied and “necessarily excludes imaginative guesswork.” Id. at ¶ 31. “Mere speculation that the jury was confused is insufficient to establish actual jury confusion.” State v. Gallegos, 178 Ariz. 1, 11 (1994). There is no per se rule that an erroneous instruction prejudices a defendant. State v. Fierro, 254 Ariz. 35, 42, ¶ 22 (2022). “Given the defendant's heavy burden to prove prejudice, 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 [superior] court.’ ” Id. at ¶ 24 (quoting Zaragoza, 135 Ariz. at 66).

¶23 In arriving at its verdict, the jury had to first consider the first-degree murder charge because Hippensteel was charged with first-degree murder. See LeBlanc, 186 Ariz. at 439 (“[I]t is proper for the court to instruct the jury that they are first to consider the offense charged and, if they cannot agree upon a verdict of guilt on that charge, they are then to consider the lesser included offenses.”) (quoting State v. Wussler, 139 Ariz. 428, 433 (1984) (Feldman, J., concurring)). The jury could only consider second-degree murder and provocation manslaughter if it found Hippensteel not guilty of first-degree murder or could not agree on that charge. The jury could then only consider reckless manslaughter if it found him not guilty of second-degree murder or could not agree on that charge.

¶24 The jury here found Hippensteel “Not Guilty” of first-degree murder and therefore then deliberated on whether he was guilty of second-degree murder.

¶25 The second-degree murder instruction correctly directed the jury that once it found the elements of second-degree murder met, it was then required to consider whether he was adequately provoked by Victim before marking the “Guilty” of second-degree murder line on the verdict form. See infra Attachment A. The jury ultimately found Hippensteel “Guilty” of second-degree murder.

¶26 If we presume the jury followed this instruction, which we must do, see Dann, 220 Ariz. at 366, ¶ 75, then the jury could not have checked the “Guilty” line for second-degree murder on the verdict form until after it considered and ruled out provocation manslaughter because the provocation manslaughter instruction is embedded in the second-degree murder instruction. It would be pure speculation and “imaginative guesswork” to assume that the jury did not follow the entire correct second-degree murder instruction. See Escalante, 245 Ariz. at 144, ¶ 31. Here, the jury finding Hippensteel “Guilty” of second-degree murder represented that its decision was made, and deliberations as to that count were complete. The jury's deliberations up to that point were therefore unaffected by the error, which means the error could not have reasonably impacted its verdict. Absent the error, a jury could not plausibly have returned a different verdict and thus no prejudice resulted.

¶27 Error was only introduced in the reasonable efforts provocation manslaughter instruction in the “Lesser-Included Offense-Manslaughter” section of the instruction. See infra Attachment A. This instruction told the jury that it “may” consider the lesser-included offense of “manslaughter” if either (1) it found the defendant not guilty of second-degree murder or (2) could not agree on that charge. See infra Attachment A. That is legally incorrect as to provocation manslaughter, but the error is not prejudicial: the second-degree murder instruction already required the jury to consider and decide on provocation manslaughter before it could find him guilty of second-degree murder. If anything, the erroneous re-inclusion of the lesser-included provocation manslaughter instruction was superfluous and inured to Hippensteel's benefit because it allowed the jury a second opportunity to consider provocation manslaughter. Neither path prejudiced Hippensteel.

¶28 Nor was the verdict form prejudicial. There, the paragraph that followed the “Guilty” checked line, although error, also is not prejudicial because it said the jury could only consider “Lesser-Included Offense-Manslaughter” (which correctly included reckless manslaughter but incorrectly included provocation manslaughter) if it found Hippensteel either (1) not guilty of second-degree murder or (2) it could not agree. Here, neither option was applied by the jury because the jury found Hippensteel guilty of second-degree murder. The jury, then, did not find Hippensteel (1) not guilty of second-degree murder nor (2) was it unable to agree that he was guilty of second-degree murder. For these reasons, Hippensteel has not shown prejudice.

III. The Dissent

¶29 The dissent relies on an unpublished memorandum decision from this court to argue that including both instructions as occurred here is prejudicial. See infra ¶¶ 44-48; see also State v. Walker, 1 CA-CR 15-0263, 2016 WL 3944543 (Ariz. App. July 19, 2016) (mem. decision). Walker is distinguishable because there, the superior court orally told the jury: “[i]f you find [the defendant] guilty of second-degree murder, you don't consider manslaughter. You are done with that count. All right? Does that make sense?” Walker, 1 CA-CR 15-0263, at *3, ¶ 13. In other words, the court told the jury to ignore the embedded provocation manslaughter instruction that required the jury to consider provocation manslaughter before convicting the defendant of second-degree murder. Walker recognized that error and concluded that the superior court's statement “directly contradicted the second-degree murder instruction and misstated the law” by telling the jury it was not required to consider manslaughter before finding the defendant guilty of second-degree murder. Walker, 1 CACR 15-0263, at *3, ¶ 13.

¶30 The same did not occur here. Yet the dissent claims the verdict form language “is precisely the same thing the trial court did incorrectly through its oral instruction to the jury in Walker.” See infra ¶ 51. Not so. The verdict form correctly told the jurors not to complete the remainder of the verdict form, i.e., move on to the lesser-included offenses, if they found Hippensteel guilty of first- or second-degree murder. See infra Attachment B. It did not, like the Walker superior court judge, tell them not to consider manslaughter once they found him guilty of second-degree murder.

¶31 And importantly, the second-degree murder jury instruction here included additional language about manslaughter that the Walker second-degree murder instruction did not include. Here, the jury was told that if it found adequate provocation by the victim, it “must find the defendant guilty of manslaughter rather than second-degree murder.” See infra Attachment B (emphasis added). The Walker instruction did not include the emphasized language above about manslaughter, but instead told the jury that if it found adequate provocation by the victim, “then you must find the defendant not guilty of second-degree murder.” The two are not the same.

CONCLUSION

¶32 Because Hippensteel has not met his burden of proving fundamental, prejudicial error, we affirm.

¶33 The majority is right that the jury instructions and verdict form were erroneous. Opinion ¶¶ 16, 18, supra. The majority is also right to treat the error as fundamental, a point on which this dissent suggests further analysis. Opinion ¶ 21, supra. But I part from my colleagues’ conclusion that the incorrect jury instructions, paired with the incorrect verdict form, did not prejudice Hippensteel. Opinion ¶¶ 21-32, supra. A reasonable jury could plausibly have returned a different verdict against Hippensteel absent these errors. For that reason, I respectfully dissent, and would reverse Hippensteel's conviction, vacate his sentence, and remand to the superior court for a new trial with correct jury instructions and a correct verdict form.

DISCUSSION

I. The Incorrect Jury Instructions and the Verdict Form, Taken Together, Constitute Fundamental Error.

A. The Majority Is Correct That the Jury Instruction at Issue and the Verdict Form Were Erroneous.

¶34 For us to reverse and order a second trial, Hippensteel must show fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 142 ¶ 21 (2018). Hippensteel argues the superior court fundamentally erred when it included an incorrect “reasonable efforts” jury instruction and “compounded that error with a verdict form that told [the jury] to stop once they found second-degree murder.” The State initially argued only that any error in the jury instructions was “ameliorated by the [superior] court's other instructions and the prosecutor's [closing] argument.” The State also argues that while the instructions were technically incorrect, they were not error because the court gave the jury the correct instruction first. But because we view all jury instructions and verdict forms as a whole and not in isolation, whether an incorrect instruction was given before or after a correct instruction does not determine whether the instructions constitute error. See Lohmeier v. Hammer, 214 Ariz. 57, 61 ¶ 13 (App. 2006).

¶35 When the evidence supports jury instructions for both provocation manslaughter and reckless manslaughter, the instructions should clearly differentiate between the two offenses. See State v. LeBlanc, 186 Ariz. 437, 438 (1996) (“[T]he jury may deliberate on a lesser offense if it either (1) finds the defendant not guilty on the greater charge, or (2) after reasonable efforts cannot agree whether to acquit or convict on that charge.”); State v. Lua, 237 Ariz. 301, 306 ¶ 19 (2015) (holding that provocation manslaughter is not a lesser-included offense of murder so the reasonable efforts instruction does not apply).

¶36 The instructions in Hippensteel's case did not clearly distinguish provocation manslaughter from reckless manslaughter. The court first correctly instructed the jury to consider whether Hippensteel was adequately provoked before determining whether he was guilty of second-degree murder. But in its instruction on manslaughter as a lesser-included offense, the court told the jury not to consider provocation manslaughter unless it found Hippensteel not guilty of second-degree murder or was unable to decide. Like the majority, see Opinion ¶ 16, supra, I agree this was a misstatement of the law and error. See Lua, 237 Ariz. at 306 ¶ 19.

¶37 The verdict form reinforced the error by directing the jury to stop deliberating once it found the elements of second-degree murder met. If the jury followed this instruction to stop deliberating at this point, it would not have considered adequate provocation. See State v. Walker, 1 CACR 15-0263, 2016 WL 3944543, at *3 ¶ 12 (Ariz. App. July 19, 2016) (mem. decision).

B. The Error Was Fundamental.

¶38 To establish fundamental error, Hippensteel must show “that (1) the error went to the foundation of the case, (2) the error took from the defendant a right essential to his defense, or (3) the error was so egregious that he could not possibly have received a fair trial.” Escalante, 245 Ariz. at 142 ¶ 21. An error in jury instructions that impedes the jury from considering a less-serious offense that is reasonably supported by the evidence goes to “the very foundation” of a defendant's case and denies “a right essential to his defense.” See State v. Valenzuela, 194 Ariz. 404, 407-08 ¶ 16 (1999) (holding court's failure to properly instruct jury “denied [defendant] a right essential to his defense and affected the very foundation of [his] theory of defense”) (cleaned up).

¶39 At trial, Hippensteel presented evidence of provocation. He testified that when he approached Victim about the stolen tractor, Victim had an agitated demeanor and waved a knife around. Hippensteel testified that in response he “reacted instantly” by using his left hand to block the knife. The incorrect jury instructions, coupled with the misleading verdict form, constitute fundamental error because they impeded the jury's consideration of Hippensteel's adequate provocation defense. See Valenzuela, 194 Ariz. at 407-08 ¶ 16. The instructions thus went to the very foundation of Hippensteel's case, making the error fundamental. See Escalante, 245 Ariz. at 142 ¶ 21.

II. Hippensteel Was Prejudiced by the Fundamentally Erroneous Jury Instructions and Verdict Form.

A. The Jury Could Have Found Provocation Manslaughter on This Record.

¶40 Whether fundamental error results in prejudice “depend[s] on the nature of the error and the unique case facts.” Id. at 144 ¶ 29. Hippensteel must show “that without the error, a reasonable jury could have plausibly and intelligently returned” a verdict for provocation manslaughter rather than second-degree murder. See id. at ¶¶ 29-31 (emphasis added). And we must examine “the entire record, including the parties’ theories and arguments as well as the trial evidence.” Id. at ¶ 31.

¶41 A defendant is guilty of provocation manslaughter rather than second-degree murder if he was adequately provoked. See A.R.S. § 13 -1103(A)(2). Adequate provocation is “conduct or circumstances sufficient to deprive a reasonable person of self-control.” A.R.S. § 13-1101(4).

¶42 The State's theory of the case at trial was that Hippensteel premeditated the homicide. Hippensteel presented evidence at trial from which a jury could find that he committed provocation manslaughter rather than second-degree murder. This evidence included: (1) Hippensteel's testimony that the physical altercation began when Victim raised a knife; (2) the knife wound on Hippensteel's hand; and (3) Hippensteel's testimony that he instantly reacted and lost self-control because of the perceived threat. See id. (establishing loss of self-control as an element of adequate provocation); cf. State v. Vickers, 159 Ariz. 532, 542 (1989) (finding words alone do not warrant an instruction for provocation manslaughter). Given that a jury could have found provocation manslaughter on this record, the question is whether the erroneous instructions impeded the jury's consideration of Hippensteel's adequate provocation defense.

B. The Instruction, Combined with the Verdict Form, Prejudiced Hippensteel.

¶43 The majority contends “Hippensteel was not prejudiced by these errors because the jury necessarily had to consider provocation manslaughter before finding Hippensteel guilty of second-degree murder.” Opinion ¶ 19, supra. This is wrong for three reasons: (1) as in Walker, the inclusion here of a LeBlanc reasonable efforts manslaughter instruction with a provocation manslaughter instruction was prejudicial to the defendant; (2) this verdict form was prejudicial because it reprises the specific error we identified in Walker – directing the jury to stop once it found second-degree murder proven without considering provocation manslaughter; and (3) the jury instructions mistakenly directed the jury that consideration of manslaughter was optional, even though it was mandatory. See Walker, 1 CA-CR 15-0263, at *3-4 ¶¶ 12-14. Given the flawed verdict form and jury instruction, and the difficulty of using them in concert, the jury did not necessarily consider provocation manslaughter.

1. Including a LeBlanc Reasonable Efforts Manslaughter Instruction with a Provocation Manslaughter Instruction Was Prejudicial Here.

¶44 The core facts of this appeal were all present in State v. Walker, an unpublished decision of our court that is helpful in analyzing this case. 1 CA-CR 15-0263. There, a panel of this Court reversed a conviction for second-degree murder where the superior court gave two manslaughter instructions at once: a provocation manslaughter instruction and a reasonable efforts instruction. Id. at *3-5 ¶¶ 12-14, 21.

¶45 That panel explained why it found including both instructions prejudicial to the defendant in that case. When a court gives both instructions:

the second-degree murder instruction correctly t[ells] the jury it must consider whether the offense was provocation manslaughter if the State prove[s] every element of second-degree murder, but the LeBlanc-type instruction that immediately follow[s] that instruction directly contradict[s] that instruction as it inform[s] the jury that it may consider manslaughter only if it found Walker not guilty of second-degree murder or could not agree on a verdict for second-degree murder.

Id. at *3 ¶ 12. Telling the jury it didn't need to consider manslaughter here was an incorrect statement of the law. Id. at *3 ¶ 13. It is therefore error.

¶46 The State and the majority respond they know to a certainty the jury considered provocation manslaughter, so the legal error is not prejudicial. See Opinion ¶¶ 25-26, supra. While the jury might have done what the State and majority suggest, they cannot know this. We simply cannot tell whether the jury followed the correct provocation manslaughter instruction (under which the jury should have been required to consider manslaughter) or the incorrect reasonable efforts instruction (under which considering manslaughter is merely optional). See Lohmeier, 214 Ariz. at 61 ¶ 13 (stating we view jury instructions and verdict forms together, not in isolation).

¶47 The State and the majority attempt to redeem the erroneous instructions here by arguing that we presume the jury follows its instructions. See Opinion ¶ 26, supra (citing State v. Dann, 220 Ariz. 351, 366 ¶ 75 (2009)). But that principle cannot fix what was wrong here. The jury cannot do two mutually exclusive things at once. We are not presuming the jury follows its instructions if we select which of the two inconsistently instructed things we prefer to think the jury did.

¶48 For these reasons, Hippensteel showed prejudice from the legal error in giving both the reasonable efforts and provocation manslaughter instructions. See Escalante, 245 Ariz. at 144 ¶ 29; Walker, 1 CA-CR 15-0263, at *4-5 ¶¶ 14-21 (finding when there is reasonable evidence to support a conviction for provocation manslaughter, inclusion of a LeBlanc reasonable efforts instruction constitutes prejudicial error); State v. Fierro, 254 Ariz. 35, 42 ¶ 25 (2022) (“An erroneous jury instruction could lead ․ [a] jury to reach a different verdict if the error relates to the defense against the charge.” (citations omitted)).

2. The Verdict Form Compounded the Prejudice by Repeating the Error in Walker – Telling the Jury to Stop Once It Found Second-Degree Murder Without Considering Provocation Manslaughter.

¶49 We reversed the second-degree murder conviction in Walker because the provocation manslaughter instruction and the reasonable efforts instruction are contradictory, and the latter instruction is not a correct statement of the law as to provocation manslaughter. 1 CA-CR 15-0263, at *3-5 ¶¶ 12-14, 21. But we found the superior court compounded that error in the jury instructions by expressly directing the jury not to consider manslaughter if it found second-degree murder proven. Id. at *3 ¶ 13. As we explained:

[t]he court told the jury that if it considered second-degree murder and either found Walker not guilty of second-degree murder or could not reach a decision on second-degree murder, “now you can go on to manslaughter. If you find him guilty of second-degree murder, you don't consider manslaughter. You are done with that count. All right? Does that make sense?” Therefore, the jury began its deliberations having been told that it could not consider whether the offense was provocation manslaughter unless it either found Walker not guilty of second-degree murder or could not reach a decision on second-degree murder. This also directly contradicted the second-degree murder instruction and misstated the law.

Id.

¶50 The verdict form here compounded the incorrectness of the jury instructions in the same way. Just like the trial judge in Walker, the verdict form here told the jury to stop and not consider provocation manslaughter once it found second-degree murder was proved. It stated:

Lesser-Included Offense Verdict on “Manslaughter”: If you find the defendant “Guilty” of “First-Degree Murder” or “Guilty” of “Second Degree-Murder,” do not complete this portion of the verdict form. In other words, complete this portion only if you find the defendant either “Not Guilty” of both “First-Degree Murder” and “Second Degree Murder” or you are unable to decide.

Attachment B, infra.

¶51 Telling the jury to stop after finding second-degree murder and not consider manslaughter is precisely the same thing the trial court did incorrectly through its oral instruction to the jury in Walker. 1 CA-CR 15-0263, at *3 ¶ 13. The verdict form here exacerbated the prejudice to Hippensteel, underscoring that we should reverse. See id. at *3-4 ¶¶ 13-14; see also Escalante, 245 Ariz. at 144 ¶ 29.

3. The Reasonable Efforts Jury Instruction Prejudiced Hippensteel by Mistakenly Telling the Jury Considering Manslaughter Was Optional – It Was Mandatory Here.

¶52 Despite the majority's opinion otherwise, the reasonable efforts jury instruction prejudiced Hippensteel. See Opinion ¶ 27, supra. Under the bolded header Lesser-Included Offense-Manslaughter, the jury instruction lumps provocation manslaughter in (starting in the third indented paragraph below) as a subset of the reasonable efforts manslaughter instruction:

Lesser-Included Offense-Manslaughter

The crimes of “first[-]degree murder” and “second[-] degree murder” include the lesser offense of “manslaughter[.]” You may consider the lesser offense of “manslaughter” if either:

1. You find the defendant not guilty of both “first-degree murder” and “second[-]degree murder”; or

2. After full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of “first-degree murder” or “second-degree murder.”

The crime of manslaughter can be committed in two ways. The first is “reckless manslaughter.” Reckless manslaughter requires proof that the defendant recklessly caused the death of another person.

The second way to commit “manslaughter” is manslaughter by sudden quarrel or heath of passion. Manslaughter by sudden quarrel or heath of passion requires proof that:

1. a. The defendant intentionally killed another person; or b. The defendant caused the death of another person by conduct which the defendant knew would cause death or serious physical injury; or c. Under circumstances which showed an extreme indifference to human life, the defendant caused the death of another person by consciously disregarding a grave risk of death. The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant's situation would have done; and

2. The defendant acted upon a sudden quarrel or heat of passion; and

3. The sudden quarrel or heat of passion resulted from adequate provocation by the person who was killed. [It is no defense that the defendant was unaware of the risk solely by reason of intoxication.] “Adequate provocation” means conduct or circumstances sufficient to deprive a reasonable person of self-control. Words alone are not adequate provocation to justify reducing an intentional killing to manslaughter. There must not have been a “cooling off” period between the provocation and the killing. A “cooling off” period is the time it would take a reasonable person to regain self-control under the circumstances.

You must unanimously agree that the State has proven “manslaughter” beyond a reasonable doubt before you may find the defendant guilty of “manslaughter.” However, all of you do not have to agree on whether it was “reckless manslaughter” or “manslaughter by sudden quarrel or heat of passion.”

If you determine that the defendant is guilty of either second-degree murder or manslaughter but you have a reasonable doubt as to which it was, you must find the defendant guilty of manslaughter.

Attachment A, infra.

¶53 The majority's explanation of this instruction highlights how it prejudiced Hippensteel. As the majority correctly notes, the reasonable efforts instruction “told the jury that it ‘may’ consider the lesser offense of ‘manslaughter’ if either (1) it found the defendant not guilty of second-degree murder or (2) could not agree.” Opinion ¶ 27, supra (emphasis added). But as the majority points out, the jury was required to consider provocation manslaughter if it found the elements of second-degree murder met, as it did here. Id. As such, the reasonable efforts instruction, if used at all, impeded the jury's consideration of provocation manslaughter by misinforming the jury that consideration of it was optional and not mandatory. The majority cannot know this instruction did not guide the jury's deliberations. That possibility requires reversal.

¶54 Far worse, reading the erroneous verdict form in conjunction with the erroneous reasonable efforts jury instruction would make it very likely the jury was misled into not considering provocation manslaughter. Why? Recall the verdict form's paragraph telling the jury to stop without considering manslaughter. Attachment B, infra. It begins “Lesser-Included Offense Verdict on ‘Manslaughter.’ ” Id. Consider that this paragraph of the verdict form uses the same words as the erroneous reasonable efforts jury instruction (“Lesser-Included Offense-Manslaughter”) and that the reasonable efforts jury instruction contains an explanation of provocation manslaughter.

¶55 Now put it all together – the jury has an instruction telling it manslaughter is optional to consider at all; provocation manslaughter is a subset of that optional analysis; and the verdict form tells the jury to stop “[i]f you find the defendant guilty of first-degree murder or guilty of second-degree murder” and “not [to] complete this portion of the verdict form” concerning manslaughter. Id. (quotations and capitalizations omitted for readability). It is the majority's certainty that the jury considered provocation manslaughter that is speculative, not this dissent's contrary view.

¶56 Again, because the verdict form read with the jury instructions may have stopped the jury from reaching the question of provocation manslaughter, Hippensteel has established prejudice. See Escalante, 245 Ariz. at 144 ¶ 29; Walker, 1 CA-CR 15-0263, at *4-5 ¶¶ 14-21. For all of the foregoing reasons, we should remand for a retrial.²

C. The State's Counterarguments Do Not Rebut the Showing of Prejudice.

¶57 The State asks us to presume the jury followed that instruction in reaching its verdict. As we noted, the majority likewise contends the jury must have followed the correct fragments of law embedded in this incorrect jury instruction. See Opinion ¶ 26, supra. Again, we cannot tell whether the jury followed the correct instruction or the incorrect one coupled with the verdict form. See Lohmeier, 214 Ariz. at 61 ¶ 13 (stating we view jury instructions and verdict forms together, not in isolation). Hippensteel's burden on appeal is simply to show that the jury could have followed the incorrect instruction, prejudicing his defense. See Fierro, 254 Ariz. at 41 ¶ 21 (describing “could have” standard for establishing prejudicial error from erroneous jury instructions). He has done so.

¶58 The State's assertion that the prosecutor's closing argument “ameliorated” the prejudice fails. The prosecutor urged the jury to “back into” its verdict from the least serious charges to the most serious. The prosecutor's argument not only failed to alleviate the prejudice but was also an inaccurate statement of the law. See LeBlanc, 186 Ariz. at 439 (“[I]t is proper for the court to instruct the jury that they are first to consider the offense charged and, if they cannot agree upon a verdict of guilt on that charge, they are then to consider the lesser included offenses.” (cleaned up)). The suggestion that the prosecution could cure this error ignores the rule that presumes the jury followed the court's instructions (and not, instead, the advocates’ closing arguments). See Dann, 220 Ariz. at 366 ¶ 75.

CONCLUSION

¶59 For all these reasons, I respectfully dissent and would reverse Hippensteel's conviction, vacate his sentence, and remand to the superior court for a new trial.

Attachment A

“Premeditation” means that the defendant intended to kill another human being or knew he would kill another human being, and that after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short.

Lesser-Included Offense-2nd Degree Murder

The crime of “first degree premeditated murder” includes the lesser offenses of “second degree murder” You may consider the lesser offense of “second degree murder” if either:

1. You find the defendant not guilty of “first-degree premeditated murder”; or

2. After full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of “first-degree murder.”

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; or 3. Under circumstances manifesting extreme indifference to human life, the defendant recklessly engaged in conduct that created a grave risk of death and thereby caused the death of another person

The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant's situation would have done; or

The difference between first-degree murder and second-degree murder is that second-degree murder does not require premeditation by the defendant.

If you determine that the defendant is guilty of either first-degree murder or second-degree murder and you have a reasonable doubt as to which it was, you must find the defendant guilty of second-degree murder.

If you find the elements of second-degree murder proven beyond a reasonable doubt, you must consider whether the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim. If you unanimously find that the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim, then you must find the defendant guilty of manslaughter rather than second-degree murder.

Lesser-Included Offense-Manslaughter

The crimes of “first degree murder” and “second degree murder” include the lesser offense of “manslaughter” You may consider the lesser offense of “manslaughter” if either:

1. You find the defendant not guilty of both “first-degree murder” and “second degree murder”; or

2. After full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of “first-degree murder” or “second-degree murder.”

The crime of manslaughter can be committed in two ways. The first is “reckless manslaughter.” Reckless manslaughter requires proof that the defendant recklessly caused the death of another person.

The second way to commit “manslaughter1’ is manslaughter by sudden quarrel or heat of passion. Manslaughter by sudden quarrel or heat of passion requires proof that:

1. a. The defendant intentionally killed another person; or

b. The defendant caused the death of another person by conduct which the defendant knew would cause death or serious physical injury; or

c. Under circumstances which showed an extreme indifference to human life, the defendant caused the death of another person by consciously disregarding a grave risk of death The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendants situation would have done; and

2. The defendant acted upon a sudden quarrel or heat of passion; and

3. The sudden quarrel or heat of passion resulted from adequate provocation by the person who was killed. [It is no defense that the defendant was unaware of the risk solely by reason of intoxication.] “Adequate provocation” means conduct or circumstances sufficient to deprive a reasonable person of self-control. Words alone are not adequate provocation to justify reducing an intentional killing to manslaughter. There must not have been a “cooling off” period between the provocation and the killing. A “cooling off” period is the time it would take a reasonable person to regain self-control under the circumstances.

You must unanimously agree that the State has proven “manslaughter” beyond a reasonable doubt before you may find the defendant guilty of “manslaughter.” However, all of you do not have to agree on whether it was “reckless manslaughter” or “manslaughter by sudden quarrel or heat of passion.”

If you determine that the defendant is guilty of either second-degree murder or manslaughter but you have a reasonable doubt as to which it was, you must find the defendant guilty of manslaughter.

Attachment B

CLERK OF THE SUPERIOR COURT

FILED 3-9-2024 33 pm

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

STATE OF ARIZONA

v.

RICKY HIPPENSTEEL

No. CR2021-123897-001

VERDICT – COUNT 1

We, the Jury, duly empaneled and sworn in the above-entitled action, and upon our oaths, do find the Defendant, Ricky Hippensteel, on the charge of “Count 1: First Degree Premeditated Murder” as the result of the death of Derek Joseph Odle as follows (check only one):

✓ Not Guilty

__ Guilty

__ Unable to agree.

Lesser-Included Offense Verdict on “Second Degree Murder”: If you find the Defendant “guilty” of “First-Degree Murder”, do not complete this portion of the verdict form. In other words, complete this portion only if you find the Defendant either “not guilty” of “First-Degree-Murder” or you are unable to decide.

We, the Jury, duly empaneled and sworn in the above- entitled action, and upon our oaths, do find the Defendant, Ricky Hippensteel, on the charge of “Second-Degree Murder” as the result of the death of Derek Joseph Odle as follows (check only one):

__ Not Guilty

✓ Guilty

__ Unable to agree

Lesser-Included Offense Verdict on “Manslaughter”: If you find the defendant “Guilty” of “First-Degree Murder” or “Guilty” of “Second Degree-Murder,” do not complete this portion of the verdict form. In other words, complete this portion only if you find the defendant either “Not Guilty” of both “First-Degree Murder” and “Second Degree Murder” or you are unable to decide.

We the jury, duly empaneled and sworn in the above-entitled action, and upon our oaths, do find the Defendant. Ricky Hippensteel, on the charge of “Manslaughter” as the result of the death of Derek Joseph Odle as follows (check only one):

___ Not guilty

___ Guilty

___ Unable to Agree

Complete this portion of the verdict form only if you find the defendant “guilty” of “manslaughter.”

Please indicate the number of jurors who found beyond a reasonable doubt that the offense of “manslaughter” was committed as follows:

__ Reckless manslaughter

__ Manslaughter by sudden quarrel or heat of passion

__ Both reckless man slaughter and manslaughter by sudden quarrel or heat of passion

Lesser-Included Offense Verdict on “negligent homicide”: If you find the defendant “guilty” of “First-Degree Murder” or “guilty” of “Second-Degree Murder” or “guilty” of “Manslaughter,” do not complete this portion of the verdict form. In other words, complete this portion only if you find the defendant either “not guilty” of “first-degree murder,” “second-degree murder,” and “manslaughter” or you are unable to decide.

We the jury, duly empaneled and sworn in the above entitled action, and upon our oaths, do find the Defendant Ricky Hippensteel, on the lesser-included offense of “Negligent Homicide” as the result of the death of Derek Joseph Odle a follows (check only one):

__ Not guilty

__ Guilty

Attachment C

Revised Arizona Jury Instructions-Criminal, 6TH

unjustifiable risk that conduct will result in the death of another. The risk must be such that disregarding it is a gross deviation from what a reasonable person would do in the situation.

If the State is required to prove that the defendant acted “recklessly,” that requirement is satisfied if the State proves that the defendant acted “intentionally” or “knowingly.”

The difference between first-degree murder and second degree murder is that second degree murder does not require premeditation by the defendant.

If you determine that the defendant is guilty of either first-degree murder or second degree murder and you have a reasonable doubt as to which it was, you must find the defendant guilty of second degree murder.

Manslaughter

You may consider the lesser offense of “manslaughter” if either:

1. You find the defendant not guilty of both “first-degree murder” and “second degree murder”, or

2. After full and careful consideration of the facts, you cannot agree on whether to find the defendant guilty or not guilty of “first-degree murder” or “second-degree murder.”

The crime of manslaughter can be committed in two ways. The first is “reckless manslaughter.” Reckless manslaughter requires proof that the defendant recklessly caused the death of another person.

“Reckless” has the same definition as used above.

The second wav to commit “manslaughter” is manslaughter by sudden quarrel or heat of passion. Manslaughter by sudden quarrel or heat of passion requires proof that:

1. a. The defendant intentionally killed another person; or

b. The defendant caused the death of another person by conduct which die defendant knew would cause death or serious physical injury; or

c. Under circumstances which showed an extreme indifference to human life, die defendant caused the death of another person by consciously disregarding a grave risk of death. The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant's situation would have done; and

2. The defendant acted upon a sudden quarrel or heat of passion; and

3. The sudden quarrel or heat of passion resulted from adequate provocation by the person who was killed.

[It is no defense that the defendant was unaware of the risk solely by reason of intoxication.]

“Adequate provocation” means conduct or circumstances sufficient to deprive a reasonable person of self-control. Words alone are not adequate provocation to justify reducing an intentional killing to manslaughter. [There must not have been a “cooling off’ period between the provocation and the killing. A “cooling off” period is the time it would take a reasonable person to regain self-control under the circumstances ]

Attachment D

Revised Arizona Jury Instructions-criminal, 6TH

encouragement that a minor uses to the by suicide with knowledge that the minor intends to the by suicide.

Source: A.R.S. § 13-1103(A)(3) (statutory language as of March 17, 2021).

Use Note: Use Statutory Definition Instructions 1.0510(a)(1) and 1.0510(a)(2) defining “intent” and “intent — inference.”

11.04 – Second-Degree Murder

The crime of second-degree murder requires proof of one of the following:

1. The defendant intentionally caused the death of [another person] [an unborn child]; or

2. The defendant caused the death of [another person] [an unborn child] by conduct which the defendant knew would cause death or serious physical injury; or

3. Under circumstances manifesting extreme indifference to human life, the defendant recklessly engaged in conduct that created a grave risk of death and thereby caused the death of [another person] [an unborn child]. The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant's situation would have done; or

[The difference between first-degree murder and second-degree murder is that second-degree murder does not require premeditation by the defendant ]

[If you determine that the defendant is guilty of either first-degree murder or second-degree murder and you have a reasonable doubt as to which it was, you must find the defendant guilty of second-degree murder.].

[If you find the elements of second-degree murder proven beyond a reasonable doubt, you must consider whether the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim. If you unanimously find that the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim, then you must find the defendant guilty of manslaughter rather than second-degree murder.

Source: A.R.S. J 13-1104 (statutory language as of January 1, 2009).

Use Note: Use Statutory Definition Instruction 1.0510(b) defining “knowingly.”

Use Statutory Definition Instructions 1.0510(a)(1) and 1.0510(a)(2) defining “intent” and “intent – inference.”

Use Statutory Definition Instruction 1.0510(c) defining “reckless.”

Use the first and/or second bracketed language if this instruction is given as a lesser-included offense instruction of first-degree murder.

Use the third bracketed language only when there is a claim that the homicide was committed upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim.

FOOTNOTES

1.   The jury instructions used here reflect the latest version of the Revised Arizona Jury Instructions (“RAJI”) Statutory Criminal 11.04 (6th ed. 2022), which continues to include provocation manslaughter automatically as part of a reasonable efforts instruction for second-degree murder—despite the case law discussed above, infra ¶ 17. See infra Attachment C.The dissent sua sponte argues that the inclusion of “or” in the second-degree murder instruction provided to the jury “marred” and rendered that instruction “nonsensical” to the jury. See infra ¶ 56 n.2. This issue was not raised by the parties at any point in this proceeding—not in their initial briefing, supplemental briefing, or at oral argument—so even if properly before us, it would be subject to fundamental error review. Although this errant “or” appears to be a mistake in the instructions given here, and in the RAJI that needs to be corrected (see infra Attachment D), the dissent's apparent cumulative error or cumulative prejudice argument regarding it is conclusory and unavailing.

2.   Yet there is additional prejudice here, flowing from the error in the RAJI the majority correctly acknowledges. The second-degree murder instruction was marred by a seeming cut-paste error that rendered it nonsensical before the supposedly curing instruction on provocation manslaughter. This jury instruction incorrectly conjoined two unrelated paragraphs with an “or” (found in the RAJI, which should be changed to remove it) that would challenge anyone trying to make sense of them as a whole. The paragraphs state:The risk must be such that disregarding it was a gross deviation from what a reasonable person in the defendant's situation would have done; orThe difference between first-degree murder and second-degree murder is that second-degree murder does not require premeditation by the defendant.Attachment A, infra.These paragraphs are not alternatives, or even related questions. No amount of puzzling by this jury could have made this instruction make sense as a whole. They make the majority's assurance that the jury “necessarily” considered provocation manslaughter, Opinion ¶ 19, supra – located at the end of this flawed instruction – even more clearly incorrect.I disagree with the majority's claim that we must not consider this obvious error when analyzing what the jury could have done here. Opinion ¶ 16 n.1, supra. While Escalante’s “could have” standard is not “easily satisfied,” when we apply it, our supreme court has commanded that “an appellate court should examine the entire record.” 245 Ariz. at 144 ¶ 31 (emphasis added). There is no more important part of this record than the second-degree murder instruction – we must examine it.

PATON, Judge:

Judge Angela K. Paton delivered the opinion of the Court, in which Judge Jennifer M. Perkins joined. Presiding Judge Andrew M. Jacobs dissented.