                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

               PAUL CLEMETH MELVILLE, SR., Appellant.

                             No. 1 CA-CR 13-0627
                              FILED 07-29-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-009547-001
                The Honorable Peter C. Reinstein, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Legal Advocate's Office, Phoenix
By Consuelo M. Ohanesian
Counsel for Appellant

Paul Clemeth Melville, Sr., Tucson
Appellant
                           STATE v. MELVILLE
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Andrew W. Gould
joined.


P O R T L E Y, Judge:

¶1            This is an appeal under Anders v. California, 386 U.S. 738
(1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for
Defendant Paul Clemeth Melville, Sr. (“Senior”) has advised us that, after
searching the entire record, she has been unable to discover any arguable
questions of law, and has filed a brief requesting us to conduct an Anders
review of the record. Senior has filed a supplemental brief.

                                  FACTS 1

¶2            Senior and Paul Melville, Jr. (“Junior”), armed with guns,
entered an apartment on November 7, 2012. They found three men inside,
J.R., L.N., and D.C., and Junior instructed the three to get to the floor,
while he pointed a gun at J.R. and Senior pointed a gun at L.N. After
tying them up with zip-ties, Junior took J.R.’s cell phone, keys, and wallet.
In the meantime, Senior dragged D.C. upstairs, then returned downstairs
and took L.N.’s keys and a cell phone, which he subsequently smashed.
Before leaving the apartment, Senior told L.N. not to call the police or they
would kill them. While outside, Senior approached another man, R.C., in
the parking lot. Senior pointed a gun at R.C. and searched his car.

¶3            Senior was subsequently arrested and charged with burglary
in the first degree, three counts of kidnapping, three counts of armed
robbery,2 and four counts of aggravated assault. He pled not guilty, but
was convicted by a jury of the armed robbery and aggravated assault




1 We view the facts “in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v.
Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997).
2 One count of armed robbery was dismissed at trial.




                                     2
                           STATE v. MELVILLE
                           Decision of the Court

charges. 3 He was sentenced to 5 years each for the two armed robbery
counts, 3.5 years each for two of the aggravated assault counts, and 7.5
years each for the remaining two aggravated assault counts. All the
counts were concurrent, except for the last aggravated assault count for
7.5 years, which was consecutive. As a result, he was sentenced to prison
for a total of fifteen years. He also received 294 days of presentence
incarceration credit and was ordered to pay $1112 in restitution.

¶4            We have jurisdiction over this appeal pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1). 4

                               DISCUSSION

¶5            Senior argues that: (1) there was a biased jury; (2) the court
erred by failing to apply the sequestration rule; (3) the State engaged in
prosecutorial misconduct; and (4) the court improperly answered a jury
question during deliberation and should have instead instructed the jury
about reasonable doubt. Because Senior failed to raise these issues at trial,
we review them for fundamental prejudicial error. See State v. Henderson,
210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is
“error going to the foundation of the case, error that takes from the
defendant a right essential to his defense, and error of such magnitude
that the defendant could not possibly have received a fair trial.” Id. To
prevail, a defendant must also establish that the error caused prejudice.
Id. at ¶ 20.

I.     Biased Jury

¶6            Senior contends that two biased jurors, jurors number nine
and number twenty-four, were seated on the jury. Those individuals were
part of the venire for jury selection. The record reveals that those two
potential jurors did not sit on the jury and, therefore, did not listen to the
evidence or participate in the deliberations. Accordingly, we find no
error.




3 The jury found Senior not guilty of burglary, but was hung on the
kidnapping charges.
4 We cite the current version of the applicable statutes absent changes

material to this decision.



                                      3
                            STATE v. MELVILLE
                            Decision of the Court

II.    Sequestration of Witnesses

¶7            Senior argues the court erred by allowing the victims to
remain in the courtroom during the trial in violation of the sequestration
rule. At a party’s good-faith request, the court may exclude a prospective
witness during testimony of other witnesses. Ariz. R. Crim. P. 9.3(a).
However, if the witness is a victim, “a person against whom the criminal
offense has been committed,” A.R.S. § 13-4401(19), the witness has the
right to be present at all criminal proceedings. Ariz. Const. art. 2,
§ 2.1(A)(3); Ariz. R. Crim. P. 39(a)(1), (b)(4); see Patterson v. Mahoney, 219
Ariz. 453, 455-57, ¶¶ 6-16, 199 P.3d 708, 710-12 (App. 2008) (vacating an
order excluding victims from the courtroom).

¶8           Here, the court acknowledged that “the rule” was in effect,
but noted that any named victim had the right to remain in the courtroom.
Although Senior claims that the victims, as witnesses, should not have
been allowed to be in the courtroom during the trial, the court properly
allowed them to remain in the courtroom throughout the criminal trial.
See Ariz. Const. art. 2, § 2.1(A)(3); see also Ariz. R. Crim. P. 39(b)(4).
Accordingly, the trial court did not err.

III.   Prosecutorial Misconduct

¶9            Senior argues the prosecutor committed misconduct by: (1)
calling witnesses the prosecutor knew were lying and preventing defense
counsel from impeaching those witnesses; and (2) improperly charging
Senior with armed robbery. Senior, however, must demonstrate the
prosecutor’s conduct was so egregious that it infected the trial with
unfairness and resulted in a conviction that denied him his due process
rights. See State v. Roque, 213 Ariz. 193, 228, ¶ 152, 141 P.3d 368, 403 (2006)
(citation omitted).

¶10           Senior argues “[t]he state knew their witnesses were lying.
Yet the prosecutor prevented the defense attorney from impeaching the
witnesses.” Here, Senior lists several examples of purported misconduct.
The list reveals his disagreement with the trial testimony, but not that the
State called witnesses it knew would commit perjury. Moreover, the
record reveals that the defense had the ability to cross-examine all the
witnesses. For example, although the State objected to defense counsel's
line of questioning and mode of impeachment of a detective, the trial
court overruled the objections and allowed the cross-examination to
proceed. The jury then had to determine the credibility of the witnesses
and what to believe in determining whether the State met its burden of



                                      4
                            STATE v. MELVILLE
                            Decision of the Court

proof as to each element of each charge. See State v. Rivera, 210 Ariz. 188,
190, 194, ¶¶ 11, 28, 109 P.3d 83, 85, 89 (2005) (“Absent a showing that the
prosecution was aware of any false testimony, the credibility of witnesses
is for the jury to determine.”); see also State v. Carreon, 210 Ariz. 54, 64, ¶
46, 107 P.3d 900, 910 (2005) (noting that a person is convicted only if a jury
finds the defendant guilty of each element of the crime beyond a
reasonable doubt), supplemented by 211 Ariz. 32, 116 P.3d 1192 (2005).
Consequently, the claim that the prosecutors knew the State’s witnesses
were lying and precluded impeachment fails based on the record.

¶11            Senior also contends that he was improperly charged with
armed robbery and, as a result, the State’s case about the armed robbery
was false. Specifically, Senior contends that the crime was not an armed
robbery, but a “drug deal [that] went bad” because none of the victims
testified that he demanded drugs or money.

¶12              The State has the discretion to determine “whether to file
criminal charges and which charges to file.” State v. Murphy, 113 Ariz.
416, 418, 555 P.2d 1110, 1112 (1976) (“The duty and discretion to conduct
prosecutions for public offenses rests with the county attorney.”). The
State has broad discretion in the manner that it exercises its power,
however, it is prohibited from “acting illegally or in excess of [its]
powers.” Id.; see Ariz. R. Sup. Ct. 42, ER 3.8 (“The prosecutor in a criminal
case shall . . . refrain from prosecuting a charge that the prosecutor knows
is not supported by probable cause.”). Moreover, the time to challenge a
charge in the indictment is before trial. See Ariz. R. Crim. P. 12.9, 13.5(e),
16.1(b); see also State v. Anderson, 210 Ariz. 327, 335-36, ¶¶ 16-17, 111 P.3d
369, 377-78 (2005) (“We require pretrial objections to an indictment in
order to allow correction of any alleged defects before trial begins.”); State
v. Moody, 208 Ariz. 424, 439-40, ¶ 31, 94 P.3d 1119, 1134-35 (2004) (“[A]ll
challenges to a grand jury’s findings of probable cause must be made by
motion followed by special action before trial; they are not reviewable on
appeal.”).

¶13            Here, after evidence was presented to the grand jury, the
grand jury found there was probable cause to charge Senior with armed
robbery and the other charges. See A.R.S. § 21-413; see also State ex rel.
Collins v. Kamin, 151 Ariz. 70, 71, 725 P.2d 1104, 1105 (1986) (“[The grand
jury’s] duty is to determine ‘whether probable cause exists to believe that a
crime has been committed and that the individual being investigated was
the one who committed it.’” (quoting State v. Baumann, 125 Ariz. 404, 408,
610 P.2d 38, 42 (1980))). Because Senior’s challenge to the indictment is
too late, we find no error.


                                      5
                           STATE v. MELVILLE
                           Decision of the Court

¶14            Moreover, J.R. and L.N., two of the men in the apartment,
testified that Senior held them at gunpoint while either he or Junior took
property from them; this is evidence which is sufficient to prove armed
robbery beyond a reasonable doubt. 5 It does not matter, however, as
Senior argues, whether a police officer smelled marijuana when he went
to the apartment or the victims did not assert that Senior demanded
money or drugs; there was other evidence sufficient for the jury to find
that the State proved the armed robberies in the apartment beyond a
reasonable doubt. The theory of the prosecution does not matter, so long
as there are sufficient facts to support a finding that the State proved each
element of each charge beyond a reasonable doubt. Accordingly, we find
no error.

V.       Jury Question During Deliberation

¶15           Senior contends that the court erred while responding to a
jury question during deliberation. The jury sent out a note asking who the
registered owners of the guns used by Senior and Junior were.6 The court,
after discussion with both counsel, directed the jurors to rely on their
notes, in addition to their individual and collective memories about the
evidence presented at trial.

¶16           Senior argues that the judge mishandled the question and
should have instructed the jury about reasonable doubt when the jury
asked the question. Senior contends that it was fundamental error for the
judge not to have given a reasonable doubt instruction and the jury
should have been instructed that “if the jury firmly [believes] that these
[guns] are not owned by the Defendant then they must not find [him]
guilty of any gun related offense.” We disagree.



5 Armed robbery is “taking any property of another from his person or
immediate presence and against his will, such person threatens or uses
force against any person with intent either to coerce surrender of property
or to prevent resistance to such person taking or retaining property” by a
person or accomplice who “1. [i]s armed with a deadly weapon or a
simulated deadly weapon; or 2. [u]ses or threatens to use a deadly
weapon or dangerous instrument or a simulated deadly weapon.” A.R.S.
§§ 13-1902(A), -1904(A).
6 During trial, the jury submitted a question to a witness about who were

the registered owners of the guns. The court limited the question, but it
was not directly asked of or answered by the witness.



                                     6
                            STATE v. MELVILLE
                            Decision of the Court

¶17            Judges have broad discretion in determining how to respond
to jury questions. Ariz. R. Crim. P. 22.3 (“After the jurors have retired to
consider the verdict, if they desire to have any testimony repeated, or if
they or any party request additional instructions, the court may recall
them to the courtroom and order the testimony read or give appropriate
additional instructions.” (emphasis added)); State v. Cheramie, 217 Ariz.
212, 219, ¶ 21, 171 P.3d 1253, 1260 (App. 2007), aff’d in part and vacated in
part on other grounds, 218 Ariz. 447, 189 P.3d 374 (2008). Judges cannot
comment on matters of fact, but rather, must declare the law. Ariz. Const.
art. 6, § 27. When a judge responds to a jury question by directing it to the
evidence, it is essentially a refusal to answer. State v. Benford, 129 Ariz.
447, 448, 631 P.2d 1105, 1106 (App. 1981).

¶18            Judges must instruct juries on basic legal principles,
including reasonable doubt, before the commencement of deliberations.
State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992); see State v.
Portillo, 182 Ariz. 592, 595-96, 898 P.2d 970, 973-74 (1995) (requiring the
court to instruct the jury on the definition of reasonable doubt after the
close of evidence). The decision to further instruct a jury on a matter is
within the trial court’s discretion.         See Ariz. R. Crim. P. 22.3.
Consequently, “[w]hen a jury asks a judge about a matter on which it has
received adequate instruction, the judge may in his or her discretion
refuse to answer, or may refer the jury to the earlier instruction.” State v.
Ramirez, 178 Ariz. 116, 126, 871 P.2d 237, 247 (1994).

¶19           Here, prior to deliberation, the judge properly instructed the
jury, including the following: “[E]vidence [is] . . . the testimony of
witnesses and the exhibits introduced in court. You should not guess
about any fact.” During deliberation, a jury question was presented about
the ownership of the guns used during the commission of the crimes.
Because possession of the guns was the relevant fact for the armed
robbery and aggravated assault charges, not the ownership of the guns,
the trial court properly instructed the jurors to refer to their notes and
memories of the evidence. See Benford, 129 Ariz. at 448, 631 P.2d at 1106
(noting that a judge’s response to refer back to evidence presented was not
coercive or a comment on the facts or law of the case).

¶20            Moreover, because the court also properly instructed the
jury about the elements of the offenses, as well as reasonable doubt, see
Portillo, 182 Ariz. at 596, 898 P.2d at 974, the court did not have to give any
other reasonable doubt instruction. See State v. Morales, 139 Ariz. 572, 574,
679 P.2d 1059, 1061 (App. 1983) (finding that the court’s referral to
previously given instructions was within its discretion in response to a


                                      7
                           STATE v. MELVILLE
                           Decision of the Court

jury query about a legal concept). Additionally, the jury instruction that
Senior now suggests should have been given is factually and legally
incorrect because registered gun ownership is not an element for
aggravated assault or armed robbery. See A.R.S. §§ 13-1204, -1904.
Consequently, the trial court did not err in the method it handled the jury
question.

VII.   Ineffective Assistance of Counsel

¶21           Defendant also contends he received ineffective assistance of
counsel. We will not consider the issue, however, because his claim can
only be raised in a petition for post-conviction relief pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 32. See State v. Spreitz, 202 Ariz. 1, 3,
¶ 9, 39 P.3d 525, 527 (2002) (“[I]neffective assistance of counsel claims are
to be brought under Rule 32 proceedings . . . claims improvidently raised
in a direct appeal, henceforth, will not be addressed by appellate courts
regardless of merit.”).

¶22           Having addressed the issues in the supplemental brief, we
have also reviewed and searched the entire record for reversible error. We
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. The record, as presented, reveals that Senior was
represented by counsel at all stages of the proceedings, and the sentences
imposed were within the statutory limits. Furthermore, the court
properly calculated Senior’s presentence incarceration credit.

¶23            After this decision is filed, counsel’s obligation to represent
Senior in this appeal has ended. Counsel must only inform Senior of the
status of the appeal and Senior’s future options, unless counsel identifies
an issue appropriate for submission to the Arizona Supreme Court by
petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d
154, 156-57 (1984). Senior may, if desired, file a motion for reconsideration
or petition for review pursuant to the Arizona Rules of Criminal
Procedure.

                              CONCLUSION

¶24           Accordingly, we affirm Senior’s convictions and sentences.




                                     :gsh




                                      8
