## Facts

- In March 1976, David Sety was at an isolated campground when Donald Cue confronted him.
- Cue loaded a rifle and pointed it at Sety.
- Sety drew a pistol, ordered Cue to “freeze,” fired warning shots, and then shot Cue in the side.
- Sety announced a citizen’s arrest and forced Cue to walk toward the dam keeper’s house.
- During attempts by Cue to flee, Sety shot Cue in the back and fired again.
- Sety claimed that, during a later encounter, Cue reached toward him and the pistol discharged as Sety moved away; Cue died from that final shot.
- Sety’s defense theory was that he acted in fear for his life throughout the encounter.

## Issues

1. Whether the trial court erred by denying Sety’s motion for a directed verdict of acquittal based on asserted self-defense and lack of malice.
2. Whether the trial court abused its discretion by reducing the jury’s second-degree murder verdict to voluntary manslaughter.
3. Whether intentional use of a deadly weapon conclusively establishes malice for second-degree murder, or instead creates only a rebuttable inference.

## Decision

- The court affirmed the judgment as modified by the trial court (voluntary manslaughter and sentence).
- The court held that malice may be inferred from use of a deadly weapon, but the inference is rebuttable by evidence of mitigation, justification, or excuse that raises a reasonable doubt as to malice.
- The court rejected the State’s argument that the firearm use compelled a second-degree murder judgment as a matter of law.
- The court held the trial judge did not abuse discretion in reducing second-degree murder to voluntary manslaughter given evidence bearing on fear and provocation.
- The court held the evidence, viewed in the light most favorable to sustaining the verdict, was sufficient to submit the case to the jury and to support criminal liability; Sety was not entitled to an acquittal as a matter of law.

## Legal Principles

- Intentional use of a deadly weapon permits an inference (or presumption) of malice, but it is not conclusive.
- The inference of malice may be rebutted by evidence of mitigation, justification, or excuse sufficient to raise a reasonable doubt regarding malice.
- A trial court may reduce a jury’s verdict to a lesser included offense when the evidence supports the lesser offense; appellate review is for abuse of discretion.
- Claims of self-defense and fear do not require acquittal when the manner and extent of force used allow a reasonable factfinder to conclude the homicide was unlawful.

## Conclusion

The court sustained Sety’s voluntary manslaughter conviction and rejected the State’s effort to reinstate second-degree murder, holding that malice inferred from deadly-weapon use is rebuttable and that evidence of mitigating circumstances can support a post-verdict reduction without constituting an abuse of discretion.


State v. Sety, 121 Ariz. 354, 590 P.2d 470 (Ct. App. 1979)