                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                  CHARLES D’MON HARDEN, Appellant.

                             No. 1 CA-CR 16-0371
                               FILED 9-28-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-004990-001
                 The Honorable Jay R. Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                           STATE v. HARDEN
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Jennifer B. Campbell joined.


D O W N I E, Judge:

¶1             Charles D’Mon Harden appeals his convictions and sentences
for first-degree burglary, armed robbery, kidnapping, aggravated assault,
and theft. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2             At approximately 8:00 p.m. on March 3, 2013, D.Z., who was
visiting his cousin N.V., heard “loud banging” at N.V.’s front door. While
N.V. answered the door, D.Z. remained in a back bedroom. D.Z. heard only
fragments of the ensuing front-door conversation, but he realized the
situation “was serious” when he heard N.V. demand to see a search warrant
and slam the door.

¶3           Seconds later, D.Z. heard the front door “bust[] open” and,
within moments, saw “a gun pointed at [his] head.” Because the armed
intruder wore camouflage clothing and tactical gear, D.Z. assumed he was
a law enforcement officer and raised his hands. The intruder then “kicked
down” the bedroom closet doors and ransacked the room, repeatedly
asking “where’s it at?”

¶4             Meanwhile, N.V. ran outside after two intruders entered his
house and attempted to call police. One intruder followed him and
confiscated his cell phone. This armed man, who was also wearing tactical
gear, identified himself as a sergeant, forced N.V. back into the house at
gunpoint, and escorted him to the back bedroom. N.V. and D.Z. sat on a
bed with their hands up while the intruders searched the house.

¶5           At some point, the intruders opened a back door to let in a
third man carrying an assault rifle. D.Z. began to suspect that the intruders
were not law enforcement officers. N.V. again demanded to see a search
warrant, and one of the men “grabbed [him] by the neck, picked [him] up,

1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                           STATE v. HARDEN
                           Decision of the Court

and slammed [him] into the bed and the wall.” The intruders also seized
D.Z.’s cell phone.

¶6            Once the intruders completed their search, they left. After
waiting a brief period, N.V. and D.Z. ventured outside the bedroom.
Without cell phones, they could not call the police, and they could not locate
nearby neighbors. Soon thereafter, N.V.’s roommate, D.W., returned home.
D.W. checked his bedroom and discovered that guns, watches, cell phones
and other electronics were missing. He called the police.

¶7             Once police officers arrived, they separately questioned the
young men. N.V. reported he recognized one of the intruders as the
bouncer from a strip club he frequented, and based on that information,
police officers compiled photo lineups. When presented with a six-person
photo lineup, N.V. immediately identified Harden as the intruder who had
pointed a gun at him. D.Z. also identified two of the intruders from photo
lineups, including Harden.

¶8          As part of their investigation, police officers executed a search
warrant on Harden’s apartment. They seized camouflage utility pants, a
badge, and photographs that pictured Harden wearing tactical gear.

¶9           The State charged Harden with: one count of first-degree
burglary; two counts of armed robbery; two counts of kidnapping; two
counts of aggravated assault; two counts of theft; and one count of
misconduct involving weapons.2 The State also alleged aggravating
circumstances and that Harden had historical prior felony convictions.

¶10            After a 21-day trial, a jury found Harden guilty as charged.
The jury also found aggravating circumstances as to each count. After trial,
Harden pled guilty to the charge of misconduct involving weapons and the
trial court found he had two historical prior felony convictions. The court
then imposed aggravated, concurrent terms of 20 years’ imprisonment on
the burglary, armed robbery, and kidnapping counts, concurrent,
aggravated terms of 15 years’ imprisonment on the aggravated assault
counts, concurrent, presumptive terms of three and three-quarters years’
imprisonment on the theft counts, and a concurrent, presumptive term of
two and one-half years’ imprisonment on the misconduct involving
weapons count. Harden timely appealed and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).


2      The misconduct involving weapons count was tried separately.


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                            STATE v. HARDEN
                            Decision of the Court

                               DISCUSSION

I.     Denial of Motion to Sever

¶11          Before trial, Harden moved to sever his trial from his
codefendants, Keith Childress and James Steagall.         Following an
evidentiary hearing, the trial court denied the motion. The court also
denied Harden’s repeated renewal of the motion during trial.

¶12            We review a trial court’s denial of a motion to sever for an
abuse of discretion. State v. Prince, 204 Ariz. 156, 159, ¶ 13 (2003). Pursuant
to Arizona Rules of Criminal Procedure (“Rule”) 13.3(b), joinder of two or
more defendants is permissible “when each defendant is charged with each
offense included, or when the several offenses are part of a common
conspiracy, scheme or plan or are otherwise so closely connected that it
would be difficult to separate proof of one from proof of the others.”
Applying the rule to these facts, joinder was proper. Each defendant was
charged with each offense.3 In addition, there was substantial overlapping
evidence implicating each of the codefendants. D.Z. and N.V. testified that
at least three men invaded the residence, and each intruder brandished a
weapon and helped ransack the home.

¶13           Because “joint trials are the rule rather than the exception,”
State v. Murray, 184 Ariz. 9, 25 (1995), when defendants are properly joined
under Rule 13.3(b), severance is required only if “necessary to promote a
fair determination of the guilt or innocence of any defendant.” Ariz. R.
Crim. P. 13.4(a). To succeed in challenging a denial of severance, a
defendant “must demonstrate compelling prejudice against which the trial
court was unable to protect.” Murray, 184 Ariz. at 25. Such prejudice occurs
when: (1) evidence admitted against one defendant is facially incriminating
to another defendant; (2) evidence admitted against one defendant has a
“harmful rub-off effect” on the other defendant; (3) there is significant
disparity in the amount of evidence introduced against the defendants; or
(4) codefendants present “antagonistic, mutually exclusive defenses or a
defense that is harmful to the co-defendant.” Id.

¶14        Harden argues the nature of his codefendants’ defenses
mandated severance. Specifically, he contends his defense that he never


3       Although the misconduct involving weapons counts were against
individual defendants, those counts were severed from the first-degree
burglary, armed robbery, kidnapping, aggravated assault, and theft counts
for trial.


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                           STATE v. HARDEN
                           Decision of the Court

entered N.V.’s residence was antagonistic to his codefendants’ claim that
they lawfully entered N.V.’s home as bounty hunters. “[T]he mere presence
of hostility between co-defendants, or the desire of each co-defendant to
avoid conviction by placing the blame on the other,” does not compel
severance. State v. Cruz, 137 Ariz. 541, 544 (1983). Severance is required
only when defenses are “antagonistic to the point of being mutually
exclusive,” that is, “only when the competing defenses are so antagonistic
at their cores that both cannot be believed.” Id. at 544–45.

¶15          None of the codefendants testified at trial, and no statements
by the codefendants pertaining to any other codefendant were admitted.4
Harden presented an alibi witness who testified that he and Harden were
at Harden’s apartment the entire evening of March 3, 2013, and the other
codefendants did not present affirmative evidence.

¶16           During closing argument, Harden’s attorney maintained that
Harden was not at N.V.’s residence on March 3, 2013, and suggested the
victims had misidentified Harden due to stress and “subtle messages” from
the officers who administered the photo lineups. Codefendant Steagall’s
attorney argued there was no physical evidence to tie his client to the crime
scene, and codefendant Childress’s attorney argued that Steagall and
Childress were bounty hunters simply doing their “job.” Counsel for
Steagall and Childress acknowledged that their clients’ defenses were
independent, but neither attorney attempted to inculpate Harden or even
place him at the scene. Thus, the codefendants’ defenses were not overtly
antagonistic toward Harden and did not defeat his claim that he never
entered N.V.’s home on March 3, 2013.

¶17           Harden next contends the court should have severed his trial
to protect him from the harmful rub-off effect of evidence admitted against
his codefendants. He argues “negative information” about Steagall’s
“bounty hunting business” and evidence that police officers found stolen
property at Steagall’s residence undermined his defense.

¶18         “’Rub-off’ occurs when the jury’s unfavorable impression of
the defendant against whom the evidence is properly admitted influences


4      The State did not introduce any of the codefendants’ statements to
law enforcement officials during its case-in-chief. In rebuttal, the State
presented a portion of Harden’s police interview statements from March 5,
2013, in which he claimed he “went to hang out” with a friend at a hotel “all
night” on March 3, 2013, but none of those statements referenced Steagall
or Childress.


                                     5
                           STATE v. HARDEN
                           Decision of the Court

the way the jurors view the other defendant.” State v. Tucker, 231 Ariz. 125,
142, ¶ 42 (App. 2012) (internal quotation omitted). The “mere introduction
of evidence concerning one defendant’s conduct that does not involve the
other defendant generally does not constitute sufficient grounds for
severance,” however. Id. Indeed, a court need not sever a defendant’s trial
“based on rub-off” if it determines, under the circumstances, that jurors are
able to separate the evidence relevant to each defendant and render “a fair
and impartial verdict as to each.” Id. (internal quotation omitted).

¶19            The State presented evidence that police officers found some
of the victims’ stolen property at Steagall’s apartment to prove the
codefendants, acting as accomplices, committed the charged offenses.
Given the State’s theory of accomplice liability, there was no danger that
this evidence may have an unintended “rub-off effect” on Harden because
the State affirmatively, and properly, used the evidence to prove his guilt.
Moreover, to the extent evidence that Steagall attempted to work as a
bounty hunter may have potentially cast Harden in a negative light, the
record reflects that the trial court properly instructed jurors to separately
weigh and consider the evidence against each defendant, which “effectively
cured any potential prejudice due to rub-off.” Id. at ¶ 43; see also Murray,
184 Ariz. at 25 (A properly instructed jury “is presumed to have considered
the evidence against each defendant separately.”). Therefore, the trial court
did not abuse its discretion by denying Harden’s motion to sever.

II.    Sufficiency of the Evidence

¶20           Harden argues the State presented insufficient evidence he
was present when the crimes occurred. We review a claim of insufficient
evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). Sufficient
evidence may be direct or circumstantial and “is such proof that reasonable
persons could accept as adequate” to “support a conclusion of defendant’s
guilt beyond a reasonable doubt.” State v. Borquez, 232 Ariz. 484, 487, ¶¶ 9,
11 (App. 2013). “To set aside a jury verdict for insufficient evidence it must
clearly appear that upon no hypothesis whatever is there sufficient
evidence to support the conclusion reached by the jury.” State v. Arredondo,
155 Ariz. 314, 316 (1987). In evaluating the sufficiency of the evidence, we
“do not reweigh the evidence to decide if [we] would reach the same
conclusions as the trier of fact.” Borquez, 232 Ariz. at 487, ¶ 9.

¶21           At trial, N.V. testified he did not recognize any of the
codefendants as the armed intruders who invaded his home on March 3,
2013. Nonetheless, the record reflects that shortly after the events unfolded
on the night in question, N.V. immediately identified Harden as the man


                                      6
                           STATE v. HARDEN
                           Decision of the Court

who pointed a gun at him when presented with a photo lineup. Likewise,
D.Z. immediately recognized Harden as one of the armed intruders when
he viewed photo lineups that evening, and he identified Harden in court
with “100 percent” certainty. Given these eyewitness identifications, as
well as the camouflage pants, badge, and pictures of tactical gear seized
from Harden’s apartment — which matched the victims’ descriptions —
the State presented sufficient evidence that Harden participated in the
home invasion and committed the crimes charged.5

                              CONCLUSION

¶22          We affirm Harden’s convictions and sentences.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




5      To the extent Harden argues his alibi evidence “created enough
reasonable doubt” that no reasonable jury could convict him, we note that
Harden’s statements to police on March 5, 2013, claiming he was at a hotel
“all night” on March 3, 2013, contradicted his alibi witness who testified
Harden was at home the entire evening. Moreover, on cross-examination,
Harden’s alibi witness acknowledged that he may have misremembered
which weekend he spent at Harden’s apartment.


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