THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

JOHNSEN, Judge.

¶1 Anthony Greg LaPointe appeals his convictions and sentences on two counts of aggravated assault. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Johnny Y. and Rachel B. went for a swim in Johnny's apartment complex pool one night shortly after midnight.1 Johnny's next-door neighbors, LaPointe and his girlfriend, Lori P., arrived at the pool about 15 minutes later. Both couples had been drinking, and both brought beer to the pool. Eventually, LaPointe hit Johnny in the face. As Johnny walked away, he heard the sound of a beer bottle breaking. Johnny ran to the pool and jumped in, but LaPointe caught up to him, put him in a choke hold, and slashed his face, shoulder and neck with the broken beer bottle. LaPointe then left the pool briefly to attack Rachel with the broken beer bottle, but then returned to the pool and resumed his attack on Johnny.

¶3 A grand jury indicted LaPointe on two counts of aggravated assault using a dangerous instrument. At trial, LaPointe admitted hitting Johnny with the broken bottle, but testified he did so only to defend himself after Johnny entered his apartment and attacked him with a broken beer bottle of his own.

¶4 The jury convicted LaPointe on both counts. It found both offenses to be dangerous and also found physical, emotional or financial harm to each of the victims as an aggravating circumstance. The court sentenced LaPointe to 14 years' imprisonment for the aggravated assault of Johnny and 10 years for the aggravated assault of Rachel, to be served consecutively. LaPointe timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 12-120.21(A)(1) (2003).

DISCUSSION

A. Failure to Give Justification Instructions.

1. Factual background.

¶5 LaPointe argues the superior court erred by failing to instruct the jury on defense of a third person (A.R.S. § 13-406 (2010)), defense of premises (A.R.S. § 13-407 (2010)), defense of property (A.R.S. § 13-408 (2010)), defense of a residential structure (A.R.S. § 13-418 (2010)) and the use of force in crime prevention (A.R.S. § 13-411 (2010)).2

¶6 The morning the court was to settle jury instructions, LaPointe submitted proposed instructions that included the instructions he raises in this appeal. The court, however, did not receive LaPointe's written submission before it met with counsel to settle instructions. The court announced it intended give a general self-defense instruction, which it then read to the parties. Defense counsel approved the proposed instruction, but added:

LaPointe did not raise in this discussion the defenses relating to defense of property (A.R.S. § 13-408) or crime prevention (A.R.S. § 13-411).3 The court ruled the self-defense instruction it planned to give was broad enough to apply to defense of a third party and agreed with the State that the evidence failed to support an instruction on defense of premises or residential structure.

¶7 The court subsequently instructed the jury in pertinent part only on self-defense pursuant to A.R.S. §§ 13-404 (2010) and 13-405 (Supp. 2010), specifically telling the jury that a defendant "is justified in using or threatening physical force in self-defense" if "[a] reasonable person in the situation would have believed that physical force was immediately necessary to protect against another's use or apparent attempted or threatened use of unlawful physical force" and "[t]he defendant used or threatened no more physical force than would have appeared necessary to a reasonable person in the situation." The court also instructed the jury that "[a] defendant may use deadly physical force in self-defense only to protect against another's use or apparent attempted or threatened use of deadly physical force," only when "a reasonable person in the situation would have reasonably believed that immediate physical danger appeared to be present," and only so long as "the apparent danger continues." Finally, the court instructed that if evidence was presented to raise this defense, "the State has the burden of proving beyond a reasonable doubt that the defendant did not act with such justification. If the State fails to carry this burden, then you must find the defendant not guilty of the charge."

2. Legal principles.

¶8 A self-defense instruction is required if "the slightest evidence" supports it. State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App. 1997). We review the superior court's denial of a jury instruction for abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006). In reviewing the court's exercise of its discretion, we "defer to the trial judge's assessment of the evidence." Id. at 5, ¶ 23, 126 P.3d at 152. The court "does not err in refusing to give a jury instruction that . . . does not fit the facts of the particular case, or is adequately covered by the other instructions." Hussain, 189 Ariz. at 337, 942 P.2d at 1169.

¶9 Failure to specifically object to omission of an instruction waives the issue on appeal absent fundamental error. Ariz. R. Crim. P. 21.3(c); see, e.g., State v. Valenzuela, 194 Ariz. 404, 406, 407, ¶¶ 8-9, 14, 984 P.2d 12, 14, 15 (1999); State v. Schurz, 176 Ariz. 46, 54, 859 P.2d 156, 164 (1993).

3. Defense of third person, premises and residential structure.

¶10 The assault charges against LaPointe were based on his use of a broken beer bottle to attack Johnny and Rachel. He testified he used a broken beer bottle to defend himself against Johnny because Johnny had come to his apartment and attacked him with a broken bottle of his own. On appeal, LaPointe argues he was entitled to an instruction on defense of third person because he was trying to protect Lori and/or Rachel from Johnny. The evidence, however, did not support the instruction. LaPointe testified he was not aware of where Lori was during his altercation with Johnny in the apartment. And although LaPointe argues on appeal he was trying to protect Rachel at the pool, at trial he testified he used a broken beer bottle only at the apartment, and did not mention Rachel in his testimony about events at the apartment

¶11 The justification of use of deadly physical force in defense of premises pursuant to A.R.S. § 13-407 incorporates the reasonable person standards contained in the self-defense instruction, A.R.S. § 13-405. Deadly physical force includes force which "in the manner of its use or intended use is capable of creating a substantial risk of causing death or serious physical injury." A.R.S. § 13-105(14) (2010). At trial, LaPointe conceded that a broken beer bottle "is incredibly dangerous," and if used to slice somebody across the neck, could very well kill him. No reasonable jury could have found that stabbing and slashing Johnny with a broken beer bottle about the head, face and neck did not constitute the use of "deadly physical force." See A.R.S. § 13-105(14).

¶12 In finding that LaPointe's assault of Johnny was not justified by self-defense pursuant to § 13-405, the jury necessarily rejected his assertion that a reasonable person under the circumstances would have believed physical force was required and that he used no more physical force than would have appeared necessary to a reasonable person. We must conclude that if the superior court had instructed on defense of premises, the jury would have reached the same decision. Accordingly, if we assume without deciding that the court erred by refusing to instruct on defense of premises, such error was harmless. See Hussain, 189 Ariz at 339, 942 P.2d at 1171; State v. Dann, 205 Ariz. 557, 565, ¶ 18, 74 P.3d 231, 239 (2003) ("Erroneous jury instructions are subject to a harmless error analysis.").

¶13 The same reasoning applies to the court's refusal to instruct on defense of residential structure. When deadly force is used, the defense of residential structure under A.R.S § 13-418 incorporates the same "reasonable person" requirements. See A.R.S. § 13-418(A). The only additional protection offered by the defense of residential structure statute is the proviso that a person asserting the defense has "no duty to retreat" before threatening or using deadly physical force. See A.R.S. § 13-418(B). The State, however, never argued that LaPointe had any duty to retreat in defending his apartment; nor did LaPointe argue that the instruction was warranted because it contained a no-duty-to-retreat provision. His own testimony did not raise any theoretical duty-to-retreat issues, because he claimed that Johnny attacked him immediately upon entering the apartment. Accordingly, on this record, any error in failing to give a "no-duty-to-retreat" instruction was harmless beyond a reasonable doubt. See Hussain, 189 Ariz. at 339, 942 P.2d at 1171.

4. Defense of property, crime prevention.

¶14 Because LaPointe did not request instructions on the use of force in crime prevention pursuant to A.R.S. § 13-411 or defense of property under A.R.S. § 13-408, we review the court's failure to give these instructions only for fundamental error. See Schurz, 176 Ariz. at 54, 859 P.2d at 164; State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Although LaPointe had asked for those instructions in a submission e-filed the day the superior court was to settle jury instructions, he knew the court had not received his submission and orally asked the court only for the instructions discussed above. See Schurz, 176 Ariz. at 54, 859 P.2d at 164. LaPointe thus bears the burden of establishing that the court erred, that the error was fundamental and that the error caused him prejudice. Henderson, 210 Ariz. at 568, ¶ 22, 115 P.3d at 608. Error is fundamental only when it reaches the foundation of a defendant's case, takes from him a right essential to his defense, or is of such magnitude that he could not possibly have received a fair trial. Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607.

¶15 LaPointe has failed to meet his burden to show that the superior court fundamentally erred, thereby prejudicing him, in failing to sua sponte instruct the jury on defense of property under A.R.S. § 13-408 or crime prevention under A.R.S. § 13-411. The defense of property instruction, as LaPointe conceded in settling jury instructions, had no support in the evidence. Moreover, this defense also incorporates the reasonable person standard for use of deadly physical force pursuant to A.R.S. § 13-405, on which the judge instructed the jury. See A.R.S. § 13-408.

¶16 Section 13-411 sets out the requirements for a crime-prevention defense. It differs from the other justification statutes in that it allows the use of deadly physical force not only in response to deadly physical force, but to the extent a person reasonably believes it is necessary to prevent one of a list of crimes, including aggravated assault. See Hussain, 189 Ariz. at 339, 942 P.2d at 1171 (citing State v. Korzep, 165 Ariz. 490, 492, 799 P.2d 831, 833 (1990)). In addition, a person is presumed to be acting reasonably if he is acting to prevent the commission of a crime identified in A.R.S. § 13-411. See A.R.S. § 13-411(C); Hussain, 189 Ariz. at 339, 942 P.2d at 1171 (citing Korzep, 165 Ariz. at 492, 799 P.2d at 833).

¶17 Lori and LaPointe testified Johnny entered their apartment with a broken beer bottle in hand and immediately tackled LaPointe. Although this testimony arguably would have supported an instruction on the use of deadly physical force to prevent an aggravated assault pursuant to A.R.S. § 13-411, LaPointe has failed to persuade us that failure to give this instruction constituted fundamental error or prejudiced him.

¶18 At trial, LaPointe's defense was that he was fighting for his life after Johnny attacked him with a broken beer bottle. It was not disputed that the use of a broken beer bottle constituted the use of deadly physical force; accordingly, the self-defense instruction the court gave allowed the jury to acquit LaPointe of the assault on Johnny if it concluded LaPointe was defending himself after Johnny attacked him with a broken beer bottle. In convicting LaPointe, the jury plainly rejected LaPointe's argument that he acted in self defense. For that reason, the presumption of reasonableness in the use of deadly physical force to prevent an aggravated assault under A.R.S. § 13-411 did not reach the foundation of LaPointe's case, take from him a right essential to his defense, or constitute error of such magnitude that he could not possibly have received a fair trial, as necessary to be considered fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607; State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991) (no fundamental error in failing to give self-defense instruction in light of the totality of the circumstances).

¶19 For the same reason, LaPointe has not shown that the absence of this instruction prejudiced him. Our review of the record convinces us that the jury either would believe his and Lori's version of events (that he slashed Johnny with a broken beer bottle as he fought in defense of his life in his apartment) or would believe Johnny's and Rachel's version of events (that LaPointe repeatedly slashed Johnny with a broken beer bottle for no apparent reason by the pool). On this record, LaPointe has failed to meet his burden to show he was prejudiced by any error that occurred when the court failed to give the crime-prevention instruction.

C. Denial of New Counsel for Sentencing.

¶20 LaPointe also argues the superior court erred by denying his request for new counsel without making an adequate inquiry. LaPointe filed a pro per Motion to Change Counsel after trial but before sentencing. He argued that he had filed four State Bar complaints against his attorney, resulting in an irreconcilable conflict, his attorney repeatedly ignored his requests that he file particular motions, and he felt his attorney had neglected his representation by failing to attempt to settle the case before trial and by mixing his case up with others. He concluded:

At a hearing, the court asked LaPointe if he wanted to add anything to his written motion, and LaPointe said he had trouble communicating with his counsel in preparing for trial, especially in obtaining discovery. The court denied the motion. Later in the hearing, after LaPointe's counsel advised that he was attempting to comply with his client's requests that he present mitigating evidence at sentencing, LaPointe told the court he also was frustrated because he was unable to persuade his lawyer to file a motion to overturn the verdict. The court advised LaPointe that his counsel ethically could not file frivolous motions and observed that his counsel always had been prepared, diligent and professional.

¶21 We review the court's decision to deny a request for new counsel for abuse of discretion. State v. Cromwell, 211 Ariz. 181, 186, ¶ 27, 119 P.3d 448, 453 (2005). The Sixth Amendment guarantees a criminal defendant the right to be represented by competent counsel. U.S. Const. amend. VI; State v. Moody, 192 Ariz. 505, 507, ¶ 11, 968 P.2d 578, 580 (1998). An indigent defendant, however, is not "entitled to counsel of choice, or to a meaningful relationship with his or her attorney." See id. (citation omitted). The court is required to appoint new counsel only if there exists "an irreconcilable conflict or a completely fractured relationship between counsel and the accused." Cromwell, 211 Ariz. at 186, ¶ 29, 119 P.3d at 453. "[A] trial judge has the duty to inquire as to the basis of a defendant's request for substitution of counsel." State v. Torres, 208 Ariz. 340, 343, ¶ 7, 93 P.3d 1056, 1059 (2004). "The nature of the inquiry will depend upon the nature of the defendant's request." Id. at ¶ 8.

¶22 The superior court did not abuse its discretion. LaPointe's complaints did not rise to the level of a "irreconcilable conflict or completely fractured relationship" that might have required appointment of new counsel. "[D]isagreements over defense strategies do not constitute an irreconcilable conflict." Cromwell, 211 Ariz. at 186, ¶ 29, 119 P.3d at 453. Nor do bar complaints create the irreconcilable conflict required for removal of the attorney. State v. Henry, 189 Ariz. 542, 549, 944 P.2d 57, 64 (1997) (citing State v. Michael, 161 Ariz. 382, 384-85, 778 P.2d 1278, 1280-81 (App. 1989)). Finally, "to prove a total breakdown in communication, a defendant must put forth evidence . . . that he had such minimal contact with the attorney that meaningful communication was not possible." Torres, 208 Ariz. at 343, ¶ 8, 93 P.3d at 1059 (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)). The issues LaPointe raised did not require the court to appoint new counsel. Nor on this record did the court conduct an inadequate inquiry prior to denying the motion.

CONCLUSION

¶23 For the foregoing reasons, we affirm LaPointe's convictions and sentences.

DONN KESSLER, Presiding Judge, HELDON H. WEISBERG, Judge, concurring.