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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   VINCENT QUIMAYOUSIE, Appellant.

                             No. 1 CA-CR 14-0749
                               FILED 3-15-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-148862-001
                   The Honorable Sam J. Myers, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Terry J. Reid
Counsel for Appellant
                         STATE v. QUIMAYOUSIE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1             Vincent Quimayousie appeals his convictions and sentences
for first degree felony murder, attempted armed robbery, and misconduct
involving weapons, arguing the superior court should have prohibited
three witnesses from identifying him at trial; instructed the jury on their
identifications; severed the misconduct charge from the other charges;
granted his Batson challenge; declared a mistrial because of juror
misconduct; barred the State from dismissing the first degree murder
charge based on premeditation; and instructed the jury on certain lesser-
included offenses. We reject these arguments and affirm Quimayousie’s
convictions and sentences.

             FACTS AND PROCEDURAL BACKGROUND 1

¶2             On the evening of September 13, 2012, Quimayousie
approached the victim, the victim’s two younger sisters (including witness
C.M., see infra ¶ 5), and two younger cousins as they walked through a city
park; he demanded their money at gunpoint. For no apparent reason,
Quimayousie then fired his gun at the victim, striking him in the chest and
killing him. A jury found Quimayousie guilty on the charges specified
above.

                                 DISCUSSION

I.     Witness Identifications

¶3           Quimayousie first argues the superior court abused its
discretion when it allowed three witnesses—M.P., C.M., and C.G.—to
identify Quimayousie at trial. State v. Moore, 222 Ariz. 1, 7, ¶ 17, 213 P.3d

              1“We  construe the evidence in the light most favorable to
sustaining the verdict, and resolve all reasonable inferences against the
defendant.” State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998)
(citation omitted).



                                      2
                         STATE v. QUIMAYOUSIE
                           Decision of the Court

150, 156 (2009). Even if we assume the circumstances surrounding the
pretrial identification were inherently suggestive (contrary to the superior
court’s finding), the circumstances were not, however, otherwise
unreliable. See infra ¶¶ 9-10. Thus, we reject this argument. State v.
Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969) (if defendant
challenges proposed in-court identification, state must prove the
circumstances surrounding any prior identification were not unduly
suggestive); and see State v. Rojo-Valenzeula, 237 Ariz. 448, 450, ¶ 7 n.1, 352
P.3d 917, 919 n.1 (2015) (although Dessureault and other cases used the term
“unduly suggestive,” supreme court used the term “inherently suggestive”
for clarity and consistency; “[a]n inherently suggestive identification
procedure triggers the need for a reliability analysis to determine whether
the identification is admissible.”).

       A.     Factual Background 2

¶4              M.P. saw Quimayousie in the park before he shot the victim.
It was “a little bit dark” when Quimayousie passed “very close” by her with
a gun in his hand as she sat on a park bench with her daughter playing
nearby. She became frightened and “scanned [Quimayousie] completely,”
looked at his face, which was uncovered, and noted his features and
clothing. She observed that Quimayousie appeared to be a thin Hispanic
male, 5’ 6” to 5’ 8”, who wore a dark, black or navy blue hat.3 After he
passed, M.P. watched Quimayousie interact with another person in the
park and then walk out of sight. Shortly after, she heard gunshots.

¶5             C.M., then 11 years old, saw Quimayousie during the
shooting itself. As noted, she was the victim’s sister and was with the
victim, their sister, and two cousins in the park. C.M. watched
Quimayousie approach the group and noted he wore a black hat, a black
shirt, and jeans. She could see Quimayousie’s eyes even though he wore a
bandana around his mouth and nose. She also noted that Quimayousie
carried a revolver. It was “fairly dark,” but she could clearly see
Quimayousie. Quimayousie demanded money from the group and shot
the victim as C.M. stood approximately a yard and a half away. She then



              2We  review the ruling on a pretrial identification based solely
on the evidence admitted at the evidentiary hearing. Moore, 222 Ariz. at 7,
¶ 17, 213 P.3d at 156.

              3Althoughthe witnesses told police he appeared Hispanic,
Quimayousie is Native American.


                                      3
                         STATE v. QUIMAYOUSIE
                           Decision of the Court

watched Quimayousie as he made his way through the family members
and jogged away.

¶6            C.G. saw Quimayousie as he fled from the park and
attempted to hide from police. She was on the outskirts of the park with
her brother and another person, riding bicycles, when they heard shots.
C.G.’s brother told them to “Go. Go.” because he saw who he believed was
the shooter coming towards them, but the group continued to ride
nonchalantly because they did not want Quimayousie to notice them or
come over to them. Although Quimayousie was three to four houses away
from her, C.G. watched him run to a house that was only “a couple” of
houses from her own house. She watched Quimayousie pound on the door
of the house and try to enter. She then went to her own house and
continued to watch Quimayousie from the curb. Even though it was dark,
security lights on the other house provided illumination. Quimayousie
eventually “hunched down” and tried to hide. C.G. watched Quimayousie
for what seemed to her like “forever,” but which she admitted could have
been “minutes.” She described Quimayousie to police as a Hispanic male,
approximately 5’ 5” tall, wearing a black shirt, black pants, and a black cap.

¶7           Police presented two people to each witness in separate one-
on-one identification procedures about 30 to 40 minutes after the shooting.
An officer gave each witness a form of the one-on-one identification
admonition and then had each witness sit in a police vehicle while the
police presented each subject in the vehicle’s spotlight.

¶8           M.P. was “80% sure” Quimayousie was the person she had
seen. She said it was only 80% because he was no longer wearing a hat.
C.M. was “absolutely positive” it was the same person even though
Quimayousie was no longer wearing his bandana. C.G. was “sure” he was
the person she had seen. All three witnesses said the other subject police
presented was not the man they had seen.

       B.     Discussion

¶9             One-person “show-up” identifications, such as those used
here, are inherently suggestive. State v. Williams, 144 Ariz. 433, 439, 698 P.2d
678, 684 (1985). Even if a superior court finds the circumstances
surrounding a prior identification inherently suggestive, however, the
court may still admit the prior identification if it determines the
identification was otherwise reliable under the totality of the circumstances.
State v. Osorio, 187 Ariz. 579, 581, 931 P.2d 1089, 1091 (App. 1996). Factors
the court must consider as part of the totality include: (1) the witness’s



                                       4
                         STATE v. QUIMAYOUSIE
                           Decision of the Court

opportunity to view the defendant at the time of the offense; (2) the
witness’s degree of attention; (3) the accuracy of any prior description of
the defendant by the witness; (4) the witness’s level of certainty at the
identification; and (5) the length of time between the crime and the
identification. Id.

¶10            Applying these factors, the superior court also found the
identifications were reliable. Each witness had ample opportunity to view
Quimayousie, and each explained why she had focused her attention on
him. See State v. Alvarez, 145 Ariz. 370, 372, 701 P.2d 1178, 1180 (1985) (when
witness rivets her attention upon a person, reliability of a subsequent
identification of that person is enhanced). All three witnesses provided
similar and ultimately accurate descriptions of Quimayousie to police and
expressed a high level of certainty in their identifications of Quimayousie.
Finally, all three identified Quimayousie within 30 to 40 minutes after the
shooting when the events were still fresh in their minds. For these reasons,
the superior court did not abuse its discretion or commit legal error in
allowing the three witnesses to identify Quimayousie at trial. See Moore,
222 Ariz. at 7, ¶ 17, 213 P.3d at 156.

II.    Identification Instruction

¶11              After the court found that the circumstances surrounding the
identifications were not “unduly suggestive” and the identifications were
reliable, it allowed the State, over Quimayousie’s objection, to withdraw its
request for the “standard” identification instruction, Revised Arizona Jury
Instruction 39. That instruction read as follows:

              The State must prove beyond a reasonable
              doubt that the in-court identification of the
              defendant at this trial is reliable. In determining
              whether this in-court identification is reliable
              you may consider such things as:

              1. the witness’ opportunity to view at the time
              of the crime;

              2. the witness’ degree of attention at the time of
              the crime;

              3. the accuracy of any descriptions the witness
              made prior to the pretrial identification;




                                      5
                          STATE v. QUIMAYOUSIE
                            Decision of the Court

              4. the witness’ level of certainty at the time of
              the pretrial identification;

              5. the time between the crime and the pretrial
              identification;

              6. any other factor that affects the reliability of
              the identification.

              If you determine that the in-court identification
              of the defendant at this trial is not reliable, then
              you must not consider that identification.

Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 39 (4th ed. 2015).

¶12            On appeal, Quimayousie argues the superior court abused its
discretion in allowing the State to withdraw its request for this instruction.
State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). We reject this
argument.

¶13           Consistent with the “use note” for this instruction and our
prior case law, a court must give this instruction when it has concluded—
using current terminology—the pretrial identification procedures were
“inherently suggestive.” E.g. State v. Osorio, 187 Ariz. 579, 582, 931 P.2d
1089, 1092 (App. 1996); see infra ¶ 3. And, more recently, this court has
recognized a court should give a cautionary instruction to the jury alerting
it to the dangers of identification evidence when a defendant has presented
evidence that a pretrial identification was made under suggestive
circumstances that call into question the reliability of the trial identification
testimony. State v. Nottingham, 231 Ariz. 21, 26, ¶¶ 12-14, 289 P.3d 949, 954
(App. 2012).

¶14             Here, as noted, the superior court did not find the
circumstances surrounding the pretrial identifications “unduly”
suggestive. And, most importantly, none of these circumstances brought
the reliability of the witnesses’ trial identifications into question. See infra ¶
10. Under these circumstances, the superior court did not abuse its
discretion in allowing the State to withdraw its proposed identification
instruction.

¶15           Nevertheless, as we recognized in Nottingham, eyewitness
testimony presents serious and significant risks. Id. at 27, ¶ 15, 289 P.3d at
955 (discussing authorities). Given these dangers, and the importance of
reliability when such evidence is presented, we encourage trial courts to


                                        6
                          STATE v. QUIMAYOUSIE
                            Decision of the Court

instruct the jury on the factors it should consider in determining whether to
consider an in-court identification reliable. Such an instruction will provide
the jury with a meaningful framework within which to evaluate the
reliability of a pretrial identification.

III.   Denial of Severance

¶16            Quimayousie next argues the superior court should have
severed the misconduct charge from the other charges. Under the
circumstances presented here the superior court did not abuse its discretion
in refusing to sever the charges. 4 State v. Garland, 191 Ariz. 213, 216, ¶9, 953
P.2d 1266, 1269 (App. 1998) (appellate court reviews ruling on severance for
abuse of discretion).

       A.     Factual Background

¶17           The superior court found the State had properly joined the
counts because the offenses were based on the same conduct. See Ariz. R.
Crim. P. 13.3(a)(2) (joinder). The superior court further ruled joinder would
not be unduly prejudicial, stated it would “sanitize” the evidence of
Quimayousie’s prior juvenile adjudications, and instructed the jury to limit
its consideration of the evidence.

¶18             The jury heard limited evidence of Quimayousie’s prior
adjudications. One witness testified Quimayousie had “prior adjudications
for felony offenses” and that his right to possess a weapon had not been
restored. The rest of the evidence concerning the prior adjudications came
through a stipulation. Before the superior court read the stipulation to the
jury, it instructed it that it would hear evidence that Quimayousie had been
adjudicated delinquent for a felony and that the evidence was relevant only
to the count of misconduct involving weapons. The superior court further
instructed the jury, “You are not to consider this information for any other
purpose.” That stipulation informed the jury that Quimayousie had twice
been adjudicated for an unidentified felony and identified the two juvenile
cause numbers, the dates of the two offenses, and the dates of the
adjudications. In the final instructions, the superior court again instructed
the jury that the prior adjudication evidence was relevant only to the count
of misconduct involving weapons, and it could not consider the evidence


              4Quimayousie  was a prohibited possessor because of two
prior juvenile felony adjudications. See Ariz. Rev. Stat. (“A.R.S.”) § 13-
3102(A)(4) (2012) (misconduct involving weapons based on prohibited
possession).


                                       7
                          STATE v. QUIMAYOUSIE
                            Decision of the Court

for any other purpose and had to decide each count separately based on the
evidence and law applicable to that count, uninfluenced by its decision on
any other count.

       B.     Discussion

              1.      Law on Severance at the Time of Trial

¶19            “Severance of joined offenses is required as a matter of right
if the offenses are joined only by virtue of their same or similar nature;
otherwise they may be severed at the trial court’s discretion.” Garland, 191
Ariz. at 216, ¶ 8, 953 P.2d at 1269; Ariz. R. Crim. P. 13.4(b). Severance is also
required, however, when “necessary to promote a fair determination of the
guilt or innocence of any defendant of any offense.” Ariz. R. Crim. P.
13.4(a).

¶20            Under the circumstances and the governing law then in
existence, the superior court did not abuse its discretion in refusing to sever
the misconduct charge from the other charges. The State properly joined
the offenses pursuant to Rule 13.3(a)(2) and severance was not otherwise
required to promote a fair determination of guilt or innocence. Further, our
supreme court has instructed us that we must presume a jury follows its
instructions. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847
(2006).

              2.      State v. Burns

¶21           Nevertheless, Quimayousie relies on State v. Burns, 237 Ariz.
1, 344 P.3d 303 (2015), to support his argument that severance was required
even though the supreme court had not yet issued this opinion at the time
of his trial. In Burns, our supreme court found the superior court had
abused its discretion when it failed to sever a count of misconduct involving
weapons from counts of murder, kidnapping, and sexual assault because
evidence of the defendant’s prior felony convictions would not otherwise
have been admissible in the guilt phase of the case. Id. at 14-15, ¶¶ 34-37,
344 P.3d at 316-17. The court further found, however, that because of the
overwhelming evidence of guilt, the error was harmless. Id. at ¶ 38.

¶22        Here, as in Burns, the evidence of Quimayousie’s guilt was
overwhelming. As explained above, see supra ¶¶ 4-6, witnesses saw
Quimayousie as he approached the park, saw him shoot the victim, and




                                       8
                          STATE v. QUIMAYOUSIE
                            Decision of the Court

saw him run away. 5 As he attempted to hide, Quimayousie sent text
messages from his phone to two friends and sought their help. He told the
first friend, “Come through [friend] I just. Bucked on sum niggazzzzs
[sic].” 6 That friend responded he was on his way and asked Quimayousie’s
location. Quimayousie texted a second friend and said, “I just bucked on
sum niggaz come through!!!!!!” Quimayousie texted his location to the first
friend several times, who again responded that he was on his way. That
friend also told Quimayousie to wash his hands. Less than two minutes
later, Quimayousie texted, “The Patty wagon is already. Here come
quick!!!!!! [sic]” In a subsequent text, Quimayousie told the first friend he
was wiping his hands.

¶23            When police arrived at the house where Quimayousie was
hiding, several officers saw Quimayousie crouch behind a car as they
approached him. They then heard the sound of a heavy metallic object hit
the concrete under the car. That metal object turned out to be a handgun
with Quimayousie’s thumbprint on it. All of the rounds in the cylinder had
been fired and Quimayousie had additional ammunition in his pockets.
Although an expert could not positively identify or exclude Quimayousie’s
gun as the weapon that fired the bullet that killed the victim, the expert
testified Quimayousie’s gun had “likely” fired the bullet. Given all the
evidence, the superior court’s refusal to sever the misconduct charge did
not affect the jury’s verdicts.

IV.    Batson Challenge

¶24             Quimayousie, a Native American, next argues the superior
court should have granted his challenge to the State’s peremptory strike of
Juror 37, the only Native American panel member, pursuant to Batson v.
Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 89 L. Ed. 2d 69 (1986)
(prosecution may not strike a potential juror solely on account of the juror’s
race). We will not reverse a superior court’s decision on a Batson challenge
unless it is clearly erroneous. State v. Lynch, 238 Ariz. 84, 104, ¶ 67, 357 P.3d
119, 139 (2015). We defer to a superior court’s findings regarding the State’s
motives for the strike, but review the court’s application of the law de novo.
Id.



              5The victim’s other sister did not participate in any pretrial
identification procedures, but identified Quimayousie at trial and was
“positive” he was the person who shot the victim.

              6The   victim was African American.


                                       9
                         STATE v. QUIMAYOUSIE
                           Decision of the Court

¶25          Here, the superior court’s rejection of Quimayousie’s Batson
challenge was not clearly erroneous. After Quimayousie established a
prima facie case of racial discrimination, the State provided race-neutral
explanations for the strike of Juror 37 that the superior court found credible
and supported by the record. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct.
1769, 1770-71, 131 L. Ed. 2d 834 (1995) (first, the opponent establishes a
prima facie case; then, the proponent must come forward with a race-
neutral explanation; finally, the trial court must decide if the opponent has
proved purposeful racial discrimination). “Unless a discriminatory intent
is inherent in the prosecutor’s explanation, the reason offered will be
deemed race neutral.” Id. at 768, 115 S. Ct. at 1771. The State explained:

              One, she's one of the jurors that did not have
              children, which was an issue for us in regard to
              our selection of a jury in this case.

              In addition, she'd indicated that she testified
              against a supervisor within the tribe, and she
              seemed somewhat gratified or satisfied in the
              fact that she had taken this on, which caused us
              some concern about her ability to get along with
              other jurors.

              Of most concern was the fact that she did not
              initially share that she had a conviction but
              shared that a little bit later, and when she did
              share it you followed up with her about
              whether or not in light of that fact she could still
              be fair. She hesitated before she answered her
              question to you. 7

¶26           Given the age of the victim and others involved in the case,
the State’s strategy of selecting jurors with children was facially valid.
Newell, 212 Ariz. at 401, ¶¶ 53-54, 132 P.3d at 845 (prosecutor’s burden to


              7The State offered a fourth reason, arguing an Internet search
revealed Juror 37 had once been and may still be a journalist, something she
did not reveal at any point. Quimayousie admitted he also found such
information, but argued she wrote her last article years earlier. There is,
however, nothing in the record but counsels’ arguments to suggest Juror 37
was ever a journalist. For this reason, the superior court declined to
consider that factor in its determination, and we also decline to consider
this factor.


                                      10
                          STATE v. QUIMAYOUSIE
                            Decision of the Court

give a race-neutral explanation for a strike is satisfied by a facially valid
explanation). Further, the manner in which a prospective juror answers
questions can also be a proper basis for a peremptory strike—here, Juror
37’s perceived satisfaction with having testified against a tribe supervisor.
State v. Hernandez, 170 Ariz. 301, 305, 823 P.2d 1309, 1313 (App. 1991). The
superior court was in the best position to assess the State’s explanation on
how her response suggested she might not be able to get along with other
jurors. Newell, 212 Ariz. at 401, ¶ 54, 132 P.3d at 845 (on issues of credibility,
“the trial court is in a better position to assess than is this Court”). Finally,
although Quimayousie disagreed with the State’s assertion that Juror 37
had been hesitant in affirming she could be fair despite her conviction, the
superior court was in the best position to decide whether the juror had, in
fact, hesitated as the State asserted.

¶27            Quimayousie argues the State’s explanations were
pretextual, however, because other jurors who were ultimately seated on
the jury, Jurors 106, 119, 126, and 129, had criminal convictions.
Quimayousie also notes Juror 126 also had no children. First, the State has
a limited number of peremptory strikes and cannot strike everyone who
does not fit the State’s mold of the ideal juror for a specific case. A party
must sometimes accept a juror that is not ideal to preserve a strike for a
juror who is even less ideal. It is unlikely the jury ultimately selected will
be completely uniform in characteristics a party considers favorable and/or
unfavorable. Second, the State did not strike Juror 37 because she had a
criminal conviction. The State struck her because it believed she hesitated
when the court asked her if she could be fair and impartial in light of her
treatment during her prosecution. The State also believed Juror 37 was not
as forthcoming about her conviction as she could have been. Under these
circumstances, the presence of Jurors 106, 119, 126, and 129 on the jury does
not establish purposeful racial discrimination.

¶28            Finally, Quimayousie argues the State should have
questioned Juror 37 further if it had genuine concerns regarding her. The
State’s decision not to ask Juror 37 more questions does not establish that
its strike was pretextual. Lynch, 238 Ariz. at 104, ¶ 70, 357 P.3d at 139.

V.     Juror Misconduct

¶29           Quimayousie next argues the superior court abused its
discretion when it denied a mistrial after Juror 2 engaged in misconduct by
researching the time of sunset on the date of the murder and the meaning
of the term “bucked” as used in Quimayousie’s text messages. State v. Hall,
204 Ariz. 442, 447, ¶ 16, 65 P.3d 90, 95 (2003).


                                       11
                         STATE v. QUIMAYOUSIE
                           Decision of the Court

¶30           Juror misconduct requires a new trial only if the defendant
proves actual prejudice or “if prejudice may be fairly presumed from the
facts.” State v. Nelson, 229 Ariz. 180, 184, ¶ 12, 273 P.3d 632, 636 (2012)
(quoting State v. Davolt, 207 Ariz. 191, 208, ¶ 58, 84 P.3d 456, 473 (2004)). In
the context of extrinsic information, as is the case here, we will not presume
prejudice without proof the jury received the extrinsic information and
considered that information in its deliberations. Id. We find no abuse of
discretion because Quimayousie has failed to prove actual prejudice and
we cannot fairly presume prejudice from the facts.

¶31           After learning of the misconduct, the superior court spoke
with each juror to learn the extent of his or her exposure to the extrinsic
information. Jurors 1, 5, 8, 9, 11, and 14 were not aware that anyone had
consulted outside sources. Juror 3 heard Juror 2 admit in the jury room that
she went online to look up the time of sunset, but did not hear Juror 2
mention a time. Juror 3 heard unidentified jurors tell Juror 2 that she should
not have done that and the discussion stopped. 8 Juror 6 was also in the jury
room when he heard an unidentified person say he or she had found out
the time of sunset, but the person never actually said the time other than to
suggest it was earlier than what another juror suggested. Juror 6 assured
the court he could disregard all of this.

¶32            Jurors 4 and 15 were at lunch with Juror 2 when Juror 2 told
them she looked up something on the Internet. Jurors 4 and 15 immediately
stopped Juror 2, told Juror 2 they did not want to hear any more, and got
up and left. It is not clear whether Juror 7 was with the group or simply
nearby during lunch, but Juror 7 heard someone mention doing research,
saw Jurors 4 and 15 leave and heard them admonish Juror 2. Juror 2 then
told Juror 7 that she had looked up the word “bucked” and told her the
definition(s), and Juror 7 also immediately admonished Juror 2 and left.
Juror 7 did not recall the definition(s) of “bucked” Juror 2 told her. Juror 7
assured the court she could base her decision solely on the evidence
admitted at trial. Juror 2 did not tell anyone other than Juror 7 that she
looked up the definition of “bucked” and never told anyone else what she
thought it meant.

¶33           Based on the jurors’ responses, the superior court denied
Quimayousie’s motion for mistrial, excused Juror 2, reconstituted the jury
with an alternate juror, and ordered the jurors to begin deliberations anew.

              8While Juror 3 thought Juror 1 was present when this
occurred, Juror 3 admitted she did not know which jurors actually heard
the discussion. Again, Juror 1 denied he heard anything.


                                      12
                        STATE v. QUIMAYOUSIE
                          Decision of the Court

The court explained to the jury that “everything that happened with the
previous jury is wiped out and you’re gonna start anew as a brand new
group of 12 starting from scratch.” The court then formally instructed the
jury:

             Members of the jury, I have replaced a
             deliberating juror with an alternate juror. The
             alternate juror will now be a deliberating juror.
             Please do not speculate or guess about the
             reasons for this change.

             You remain under the admonitions previously
             given to you. You are also required to follow
             the final jury instructions previously provided
             and read to you.

             You are to start your deliberations anew,
             starting with . . . selection of a jury foreperson.
             You are to begin deliberating with full and
             detailed discussion about all the issues as
             though the previous deliberations had not taken
             place. Any preliminary or final decisions you
             may have made about any aspect of the case
             must be set aside and discussed anew. You
             shall not consider any part of your prior
             deliberations and/or discussions, including any
             prior votes or any decisions you may have
             previously made about the case.

 The reconstituted jury began its deliberations shortly before noon and
returned its verdicts shortly after noon the next day. The record contains
no evidence that Juror 2’s misconduct actually prejudiced Quimayousie.

VI.   Dismissal of the Premeditated Murder Charge

¶34            Quimayousie argues the superior court should have barred
the State from dismissing the first degree murder charge based on
premeditation. We disagree. “Choosing which offense to charge and
prosecute is within the discretion of the prosecutor.” State v. Lopez, 174
Ariz. 131, 143, 847 P.2d 1078, 1090 (1992). The State may withdraw a theory
of first degree premeditated murder after the close of evidence and proceed
solely on a theory of first degree felony murder. Id.




                                     13
                         STATE v. QUIMAYOUSIE
                           Decision of the Court

¶35           Here, the State charged Quimayousie with a single count of
first degree murder, but alleged alternate theories of premeditated and
felony murder. See Ariz. Rev. Stat. (“A.R.S.”) § 13-1105(A)(1) and (2) (2012).
At the conclusion of the evidentiary portion of the trial, the superior court
held the evidence supported an instruction on second degree murder as a
lesser-included offense of first degree premeditated murder. Given the
superior court’s ruling, the State elected to dismiss the premeditation
theory and proceed solely on the felony murder theory. Thus, the superior
court properly dismissed the premeditation theory.

VII.   Refusal to Instruct on Lesser-Included Offenses

¶36           Quimayousie argues the superior court should have
instructed the jury on lesser-included offenses of first degree murder even
though the only charge of murder that remained was first degree felony
murder. We reject this argument; there are no lesser-included offenses to
felony murder. Davolt, 207 Ariz. at 213, ¶ 92, 84 P.3d at 478.

                              CONCLUSION

¶37          For the foregoing reasons, we affirm Quimayousie’s
convictions and sentences.




                                  :ama




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