## Facts

- John Nunez went to Leo and Theresa Torres’s home and accused Leo of involvement with Nunez’s girlfriend.
- Theresa called her brother Richard to come to the residence to persuade Nunez to leave.
- When Richard arrived, Nunez was outside with a gun and shot Richard in the yard.
- Nunez kicked in the front door, entered the home, and shot Leo and Theresa inside.
- All three victims survived.
- Nunez was charged with three counts of attempted first-degree murder and one count of first-degree burglary.
- Evidence showed Nunez had been drinking; intoxication was raised as relevant to his ability to form the required mental state.
- The jury was instructed that attempted first-degree murder could be committed “intentionally or knowingly,” and Nunez was convicted on all counts.

## Issues

1. Whether Arizona law permits conviction for attempted first-degree murder based on a “knowing” mental state, or whether attempt liability requires “intent” to kill.
2. Whether the trial court erred by instructing that voluntary intoxication could be considered as to “intentional” attempted first-degree murder but could not be considered as to “knowing” attempted first-degree murder.

## Decision

- The Arizona Court of Appeals affirmed the convictions for three counts of attempted first-degree murder and one count of first-degree burglary.
- The court held Arizona law recognizes “knowing” attempted first-degree murder under the attempt statute’s structure.
- The court held the voluntary intoxication instruction, viewed with the full set of instructions, was not reversible error.

## Legal Principles

- Under A.R.S. § 13-1001, attempt requires the defendant to intentionally engage in the conduct constituting the substantial step while also acting with the culpable mental state required for the completed offense.
- Because first-degree murder may be committed “intentionally or knowingly,” attempt liability may rest on an underlying “knowing” mental state so long as the substantial-step conduct is intentional.
- A jury may be instructed that voluntary intoxication is relevant to whether a defendant acted “intentionally,” but not relevant to whether the defendant acted “knowingly,” consistent with Arizona’s statutory treatment of intoxication and mens rea.
- Jury instructions are reviewed as a whole; an instruction distinguishing between “intentional” and “knowing” mens rea is not error if it correctly states the law and does not mislead the jury.

## Conclusion

The court affirmed Nunez’s convictions, holding that Arizona’s attempt statute permits attempted first-degree murder predicated on a knowing mental state and that the jury was properly instructed to consider voluntary intoxication only as to intentional, not knowing, attempted first-degree murder.


State v. Nunez, 159 Ariz. 594, 769 P.2d 1040 (Ct. App. 1989)