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State v. Prasertphong9/2/2003
esistance to taking or keeping the property.
Finally, the court's accomplice instruction informed the jury that a person is criminally responsible for the conduct of another if with the intent to promote or help in the commission of an offense : 1. Aids, counsels, agrees to aid, or attempts to aid another person in planning or committing the offense; 2. Asks or commands another person to commit the offense; or 3. Provides the means or an opportunity to another person to commit the offense.
The trial court found these instructions adequately covered Prasertphong's theory that he was a "late joiner." The record supports the trial court's decision. The instructions the court gave correctly stated the law. See State v. Henry, 176 Ariz. 569, 582, 863 P.2d 861, 874 (1993) (finding robbery instruction that defendant "threatened or used force with the intent either to coerce the surrender of the property or to prevent resistance to his taking or retaining the property" adequately informed the jurors of the co-existence requirement and provided an adequate basis for felony murder conviction); State v. Doerr, 193 Ariz. 56, 65, 35, 969 P.2d 1168, 1177 (1998) (holding " here the law is adequately covered by instructions as a whole, no reversible error has occurred."). Therefore, refusal to give Prasertphong's proffered instructions was not an abuse of discretion.
D.
Prasertphong also claims that the standard accomplice instruction given at trial was deficient because it did not adequately emphasize that unknowing aid (having the gun in the truck), or a lack of intent to steal during the commission of the murders, did not amount to accomplice liability. Because the court refused Prasertphong's more specific instructions regarding accomplice liability, he contends constitutional error occurred.
The accomplice instruction given at trial tracked the language of the statute. See A.R.S. § 13-301 (2001). It properly told the jurors that accomplice liability requires the intent to promote the offense as evidenced by actions such as soliciting, aiding, promoting, or providing the means for another person to commit an offense. A defendant should receive instructions on any theory of a case supported by the evidence. Valenzuela, 194 Ariz. at 405, 2, 984 P.2d at 13. However, a jury need only be properly instructed as to accomplice liability; the court need not provide "additional instructions that do nothing more than reiterate or enlarge the instructions in defendant's language." Salazar, 173 Ariz. at 409, 844 P.2d at 576. Because the instruction here correctly stated the law, the trial court did not abuse its discretion.
E.
Prasertphong argues that the court's reasonable doubt instruction taken from State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), was erroneous and resulted in fundamental and reversible error. According to Prasertphong, the Portillo instruction decreased the State's quantum of evidence required to show proof beyond a reasonable doubt, increased Prasertphong's quantum of evidence needed to acquit, and erroneously and confusingly referenced different standards of proof that apply to civil and criminal cases.
This court mandates the giving of the Portillo reasonable doubt instruction in every criminal case. Portillo, 182 Ariz. at 596, 898 P.2d at 974. We explicitly held that the Portillo reasonable doubt instruction did not improperly shift the burden of proof to the defendant. State v. Finch, 202 Ariz. 410, 415, 18, 46 P.3d 421, 426 (2002); see also Cañez, 202 Ariz. at 156, 75-76, 42 P.3d at 587. Because we require trial courts to give the Portillo reasonable doubt instruction, and because the
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