State v. Dickinson
In State v. Dickinson, 233 Ariz. 527, 53011, 314 P.3d 1282, 1285 (App. 2013) 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 5295-6, 314 P.3d at 1284.
The State's theory was that Dickinson tried to kill the victim. Id. at6. Dickinson did not testify, nor did he call witnesses, but he asserted a defense of mistaken identity and claimed no involvement. Id. Dickinson argued that someone else ran over the victim and that he was being framed. Id. At no time did Dickinson assert that he hit the victim, but did not intend to or try to kill the victim. Id.
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 53012, 314 P.3d at 1285, but we nevertheless found that he had not proved prejudice:
"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 53222, 314 P.3d at 1287.