State v. Aaragon, No. CR -20-0304-PR (March 21, 2022) (J. King) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2022/CR200304PR.pdf

Defendant Fontes, allegedly driving 70-95 miles per hour in a 45 mile per hour zone, struck plaintiff Shelby's car killing Shelby's 7 month old son and seriously injuring Shelby. Both Shelby and his son were unrestrained and ejected from their car in the crash. Marijuana and a glass pipe were found in Shelby's car and tetrahydrocannabinol [THC] was found in Shelby's system. Shelby pled guilty to driving under the influence while the defendant Fontes was charged with  manslaughter, two counts of aggravated assault and criminal damage. 

Before Fontes criminal trial the State filed a motion in limine to prevent Fontes from introducing evidence to support a superseding cause defense. The trial court denied the motion and the State brought this Special Action.  The Arizona Court of Appeals accepted jurisdiction and granted the State relief determining Shelby's conduct was not unforeseeable or extraordinary and therefore not a superseding cause. The Arizona Supreme Court vacated the trial court and court of appeals decision.

The supreme court held that where the claimed superseding conduct of the victim occurs simultaneously with the alleged criminal conduct of the defendant, the victim's conduct is a concurrent and not a superseding cause. In order for a victim's conduct to supersede the defendant's conduct, it must operate to cause the harm after the defendant has lost control of the situation.  Here Shelby's conduct preceded and continued simultaneously with Fontes alleged criminal acts while Fontes had control over the situation.  Where, as here the conduct cannot be superseding, the question as to whether or not the conduct is unforeseeable or extraordinary is never reached.

The court clarified that it was possible for conduct constituting a superseding cause to have begun before the conduct of the defendant provided the victim's conduct “first operates” to cause harm after the defendant has “lost control of the situation” and neither knew or should have known of the victim's conduct.