                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   TOLLY DEVEYON ALLEN, Appellant.

                             No. 1 CA-CR 15-0281
                               FILED 7-7-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-145058-001
                 The Honorable Danielle J. Viola, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Ballecer & Segal, LLP, Phoenix
By Natalee Segal
Counsel for Appellant
                            STATE v. ALLEN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Lawrence F. Winthrop concurred and Judge Donn Kessler concurred
in part and dissented in part.


S W A N N, Judge:

¶1           Tolly Deveyon Allen (“Defendant”) appeals his convictions
and sentences for one count of burglary in the first degree, two counts of
aggravated assault, and two counts of kidnapping. He asserts that the trial
court committed fundamental error when it excused a juror after the close
of evidence. Defendant also contends the court fundamentally erred by
considering improper aggravating factors during sentencing. For the
following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           A.H. and his adult daughter, S.M., were in their respective
bedrooms when Defendant, Defendant’s brother, and another individual
forced entry into A.H.’s home. A.H. was resting on his bed when
Defendant held him down and pressed a sword blade to A.H.’s throat and
threatened to kill him. A.H. feared for his life.

¶3            Meanwhile, S.M. and her boyfriend barricaded themselves in
her room, and S.M. called 9-1-1. Defendant’s brother threatened S.M. and
tried to open S.M.’s bedroom door by beating on it with a baseball bat. S.M.
feared for her life, but before she was harmed, the intruders fled the home
when they realized police were en route. Officers Gierish and Nielsen
apprehended the suspects.

¶4            Alleging both direct and accomplice liability, the state
charged Defendant with one count of burglary in the first degree, a class 2
felony (Count 1), two counts of aggravated assault, class 3 felonies (Count
2 for A.H., and Count 4 for S.M.), and two counts of kidnapping, class 2
felonies (Count 3 for A.H., and Count 5 for S.M.). The jury found Defendant



1      We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Defendant. See State
v. Kiper, 181 Ariz. 62, 64 (App. 1994).


                                     2
                             STATE v. ALLEN
                            Decision of the Court
guilty as charged, and the court imposed aggravated concurrent prison
sentences for all counts. Defendant appeals.

                               DISCUSSION

¶5            To obtain relief under fundamental error review, Defendant
has the burden to show that error occurred, the error was fundamental, and
it prejudiced him. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22
(2005). Fundamental error is error that “goes to the foundation of [a
defendant’s] case, takes away a right that is essential to his defense, and is
of such magnitude that he could not have received a fair trial.” Id. at 568, ¶
24. We will not presume prejudice where none appears affirmatively in the
record. See State v. Trostle, 191 Ariz. 4, 13-14 (1997); State v. Munninger, 213
Ariz. 393, 397, ¶ 14 (App. 2006).

I.     EXCUSED JUROR

¶6              On the fifth day of trial, the court informed counsel that juror
number 5 “had made inquiry to my bailiff as to post-trial security[.]” The
court stated it had intended to question the juror, but it had just learned
that the juror overheard Defendant’s wife “reportedly making some
comment about court security and a juror being concerned about that.” The
court noted that juror 5 “was apparently not around the other jurors” when
the comment was overheard. Upon learning this information, the parties
agreed to immediately dismiss the juror. Accordingly, the court directed
the bailiff to release the juror, and the court proceeded to review the final
instructions with the remaining thirteen jurors.

¶7            Defendant argues the court committed fundamental error in
releasing the juror without questioning him or her (and the entire jury)
about the expressed security concerns and the statement made by
Defendant’s wife. Defendant contends “it is unclear . . . if the remaining
jurors were aware of the concerns of the excused juror or if they overheard
the family discussing court security.” Defendant summarily asserts, “[b]y
not making the inquiry, the court prejudiced [him,]” but Defendant does
not explain the nature of the purported prejudice.

¶8             A defendant in a criminal case is entitled to a fair and
impartial jury, but he is not entitled to any particular jury. State v. Arnett,
119 Ariz. 38, 50 (1978). Defendant does not identify anything in the record
demonstrating that the verdicts in this case resulted from a biased or partial
jury. And despite Defendant’s suggestion to the contrary, the court was not
required to question juror number 5 or the entire jury. See State v. Dann, 220
Ariz. 351, 372, ¶ 116 (2009) (holding “the trial court did not abuse its


                                       3
                            STATE v. ALLEN
                           Decision of the Court
discretion by declining to conduct additional hearings or strike . . . jurors”
who were observed by a defense witness and a member of defendant’s
family discussing the case amongst themselves).

¶9           We discern no error, fundamental or otherwise; thus,
Defendant fails to satisfy his burden of establishing reversible error.

II.    SENTENCING: AGGRAVATING FACTORS

¶10           Before sentencing, the jury found that Defendant had
committed the offenses while on probation. Additionally, based on
Defendant’s testimony at the aggravation trial, the court found he had two
prior felony convictions. The jury found that the state proved the presence
of an accomplice as an aggravating factor for all counts. The court,
however, found Defendant’s age and family support were mitigating
factors.

¶11          For Counts 1 through 3 only, the jury found that the state had
proven the following two additional aggravating circumstances:
threatened infliction of serious physical injury; and use, threatened use or
possession of a deadly weapon or dangerous instrument during the
commission of a crime.

¶12            The parties agreed to sentencing of Defendant as a category 3
repetitive offender as to Counts 1 through 3, rather than as a dangerous
offender.2 See A.R.S. §§ 13-703, -704. Upon weighing the mitigating and
aggravating factors, the court imposed slightly aggravated concurrent
prison terms of 16.25 years for the class 2 felonies (Counts 1, 3, and 5) and
12 years for the class 3 felonies (Counts 2 and 4).

¶13             Defendant challenges his sentences for Counts 1 through 3,
arguing the aggravating factors found by the jury are elements of the
offenses. Specifically, he argues that (1) possession or use of a dangerous
weapon is an element of the burglary charge; (2) threatened infliction of
serious physical injury and use of a dangerous instrument or deadly
weapon are elements of the aggravated assault charge; and (3) threatened
infliction of serious physical injury is an element of the kidnapping charge.

¶14          Because Defendant did not make this argument at sentencing,
we review for fundamental error. See Munninger, 213 Ariz. at 396, ¶ 10. He



2      Although the jury found Counts 1 through 3 were dangerous
offenses, the court expressly did not consider that finding at sentencing.


                                      4
                             STATE v. ALLEN
                            Decision of the Court
contends he “is prejudiced if his sentence would have been even a little bit
lessened.”

¶15            A person commits burglary in the first degree by entering a
residential structure with the intent to commit theft or any felony therein
and knowingly possesses a deadly weapon or dangerous instrument
during the course of committing the theft or felony. A.R.S. §§ 13-1507(A),
-1508(B). As charged in this case, a person commits aggravated assault by
using a deadly weapon or dangerous instrument (here, a sword) to
intentionally place another in reasonable apprehension of imminent
physical injury. A.R.S. §§ 13-1203(A)(2), -1204(A)(2). A person commits
kidnapping by knowingly restraining another with the intent to inflict
death or physical injury or to otherwise aid in the commission of a felony.
A.R.S. § 13-1304(A)(3).

¶16             Based on the foregoing, the offenses of aggravated assault and
kidnapping do not contain the element of threatened infliction of serious
physical injury. See A.R.S. § 13-105(33), (39) (separately defining “physical
injury” and “serious physical injury”). Thus, the court did not err,
fundamentally or otherwise, in considering this factor as an aggravating
circumstance when determining Defendant’s sentences for Counts 2 and 3.
See A.R.S. § 13-701(D)(1) (“[T]he trier of fact shall determine and the court
shall consider the following aggravating circumstances . . . : Infliction or
threatened infliction of serious physical injury, except if this circumstance is
an essential element of the offense of conviction . . . .” (emphasis added)).

¶17              We agree with Defendant, however, that possessing or using
a dangerous instrument or deadly weapon is an essential element of first-
degree burglary and aggravated assault as charged in the indictment.
Consequently, the court erred in considering the dangerous instrument or
deadly weapon aggravating factor as to Counts 1 and 2. See A.R.S. § 13-
701(D)(2) (“[T]he court shall consider . . . [as an] aggravating circumstance
[ ] the [u]se, threatened use or possession of a deadly weapon or dangerous
instrument during the commission of the crime, except if this circumstance is
an essential element of the offense of conviction . . . . ”(emphasis added)).

¶18           Although the court erred in this respect, Defendant cannot
establish that the error was fundamental or that it prejudiced him.
Defendant committed the offenses while on probation; thus, he could not
be sentenced to less than the statutory presumptive terms. See A.R.S. § 13-
708(C). Defendant’s probationary status at the time of the offenses, in
conjunction with his two prior felony convictions and the aggravating
factor found by the jury (presence of an accomplice), exposed Defendant to
a sentencing range of 15.75 to 35 years for the burglary conviction and 11.25


                                       5
                            STATE v. ALLEN
                           Decision of the Court
to 25 years for the aggravated assault conviction. See A.R.S. §§ 13-701(D)(4),
(25), -703(C), (G), (J). Defendant does not challenge the court’s reliance on
his probationary status and the presence of an accomplice to aggravate his
sentences.3 Furthermore, the court imposed sentences that are only nine
months longer than the presumptive terms for both convictions (and more
than a decade shorter than the maximum terms), and that are well within
the aggravated range set forth in § 13-703(J). Accordingly, Defendant’s
sentences are lawful and no fundamental error occurred. See State v. Glassel,
211 Ariz. 33, 58, ¶ 104 (2005) (noting defendant’s failure to challenge trial
court’s use of aggravators other than one found by the court forecloses
claim of Blakely error); Munninger, 213 Ariz. at 397, ¶ 12 (sentence that is
within prescribed aggravated range despite use of improper aggravator is
a legal sentence); cf. State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002)
(“Imposition of an illegal sentence constitutes fundamental error.”).

¶19            Finally, Defendant has not identified anything in the record
that indicates that the court would have imposed lesser sentences had it not
considered the improper aggravator. Indeed, Defendant’s concession that
“it is unclear whether the trial court would have imposed the same length
of sentence had she properly considered the aggravators” illustrates the
speculative nature of his assertion that he “is prejudiced if his sentence
would have been even a little bit lessened.” See Munninger, 213 Ariz. at 397,
¶ 14 (holding appellant’s speculation — that trial court would impose
specific sentence had improper aggravating factor not been considered —
does not show prejudice). Defendant fails to meet his burden of
establishing that the court committed fundamental prejudicial error in
imposing the sentences for Counts 1 and 2.

                              CONCLUSION

¶20          For the foregoing reasons, we affirm Defendant’s convictions
and sentences



3      Defendant also does not argue that the trial court was precluded
from using his probationary status both to enhance his sentence under §§
13-708(C) and -703(G) and as an aggravating factor under §§ 13-701(D)(25)
and -703(G). See State v. Clough, 171 Ariz. 217, 225 (App. 1992) (“The trial
court may consider as [an] aggravating circumstance[ ] the defendant’s
prior record.”); State v. LeMaster, 137 Ariz. 159, 166 (App. 1983) (“Double
jeopardy or double punishment principles do not preclude the trial court
from using the prior conviction to impose an enhanced sentence . . . and to
find aggravating circumstances under A.R.S. § 13–702.”).


                                      6
                             STATE v. ALLEN
           Kessler, J., Concurring in Part and Dissenting in Part
KESSLER, Judge, concurring in part and dissenting in part:

¶21           I concur with the majority on the issues of the releasing of the
juror and the use of aggravators under A.R. S. § 13-701(D)(1). I respectfully
dissent from the affirming of the sentences for counts 1 and 2 (first-degree
burglary and aggravated assault as charged in the indictment) based on the
court’s consideration of A.R.S. § 13-701(D)(2) aggravator of possessing or
using a dangerous instrument or deadly weapon which is an essential
element of those two counts. I would remand those two counts for
resentencing.

¶22            The imposition of an aggravated sentence based in part on
consideration of a prohibited aggravating factor constitutes fundamental
error. State v. Trujillo, 227 Ariz. 314, 318, ¶ 15 (App. 2011). When that
occurs, we will remand for resentencing when “we cannot be certain that
[the trial court] would have imposed the same sentence absent that factor
 . . . .” State v. Munninger, 213 Ariz. 393, 396, ¶ 9 (App. 2006) (internal
quotation marks and citation omitted). Moreover, we will find prejudice if,
after a review of the record, an appellant shows the court could have
reasonably imposed a lighter sentence had it not improperly considered the
prohibited factor, that is, if the record indicates that the improper factor
influenced the sentencing decision. Trujillo, 227 Ariz. at 318-19, ¶¶ 16, 21.

¶23           Here, the trial court balanced a number of aggravators against
a few mitigators to impose aggravated sentences on counts 1 and 2. On this
record, I cannot be certain the superior court would have imposed the same
sentence absent the prohibited aggravator, and the appellant has shown
prejudice. Cf. Munninger, 213 Ariz. at 397, ¶¶ 12, 14 (determining no
fundamental error or prejudice occurred because the judge expressly found
that each of the aggravating factors alone would have outweighed the
mitigating factors).

¶24          Accordingly, I would remand for resentencing on the
convictions for first-degree burglary and aggravated assault without the
aggravating factor of possessing or using a dangerous instrument or deadly
weapon prohibited by A.R.S. § 13-701(D)(2).




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