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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ARLONZO COLEMAN, Appellant.

                             No. 1 CA-CR 15-0194
                               FILED 9-29-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-417608-001
                The Honorable Teresa A. Sanders, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

The Heath Law Firm PLLC, Mesa
By Mark Heath
Counsel for Appellant
                            STATE v. COLEMAN
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.


J O N E S, Judge:

¶1            Arlonzo Coleman appeals his convictions and sentences for
two counts of armed robbery, two counts of kidnapping, one count of
burglary in the first degree, one count of unlawful flight from a law
enforcement vehicle, and one count of assisting a criminal street gang. For
the reasons that follow, we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2              On the evening of April 19, 2013, thirteen-year-old I.G. spent
the night at the apartment of her friend, U.M., who was also thirteen. When
I.G. first arrived, U.M.’s mother and brother were home. At some point
during the evening, however, U.M.’s mother and brother left the girls there
alone.

¶3             At approximately 1:00 a.m., the girls heard a knock at the
front door. Ignoring I.G.’s plea not to answer it, U.M. opened the door and
was confronted by a man holding a gun. U.M. slammed the door, yelled to
I.G., and the girls ran and hid in a closet. While huddled in the closet, U.M.
called 9-1-1 on her cell phone. Moments later, three or four men burst into
the apartment. Afraid the men might hear her, U.M. never spoke to the 9-
1-1 operator, but also did not end the call.

¶4           Notwithstanding the girls’ silence, the intruders soon found
them and ordered them into the living room. All the men had guns. They
ordered the girls to search the apartment for “weed.” The girls attempted
to comply but failed to find anything, and the men became angry and
“waved” their guns “around.” One man hit each girl in the head with his


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).



                                       2
                           STATE v. COLEMAN
                           Decision of the Court

gun and another man “kicked” U.M. into a cabinet. After ransacking the
apartment and failing to find any drugs or money, the men left.

¶5             At 1:23 a.m., Officers Daley and Phillips responded to a radio
call for emergency assistance arising from “unknown trouble” at an
apartment building. As Officer Daley exited his patrol vehicle and
approached the complex, he observed a young man walking down the
street, away from the site of the reported emergency. The young man
appeared to be looking at his cell phone, but when he glanced up and saw
the officers, “he fled full sprint.”

¶6             After Officer Daley radioed about the fleeing subject, he
chased the man for a few blocks and eventually detained him. Backup
officers soon arrived and Officer Daley returned to the apartment complex.
As the officer again approached the apartment, he saw a vehicle “reversing
out of the complex” and travelling away “at a very high rate of speed.” A
police helicopter tracked the speeding vehicle until it crashed into a curb.
After the collision, the driver and a passenger fled on foot. The helicopter
pilot tracked the driver, later identified as Coleman, to a large dirt lot,
where he was arrested by Officer Daley. Officers later located the passenger
in a residential shed, identified him as Jose Dominguez, and placed him
under arrest.

¶7           The State charged Coleman with two counts of armed
robbery, two counts of kidnapping, one count of burglary in the first
degree, one count of unlawful flight from a law enforcement vehicle, and
one count of assisting a criminal street gang. The State also alleged
numerous aggravating factors and that the crimes were dangerous.

¶8            At trial, I.G. positively identified Coleman as one of the
intruders who broke into U.M.’s apartment. Dominguez testified he,
Coleman, and all but one of the other five participants in the home invasion
were members of a criminal street gang known as the Broadway Gangsters.
He explained that Coleman was the highest ranking gang member
involved, and, pursuant to the rules of the gang, the other men were
required to respect the gang’s hierarchy and follow Coleman’s orders or
face a “beat down.” Dominguez admitted that he, Coleman, and several
other gang members planned to commit the home invasion under the belief
that there was ten pounds of marijuana and a substantial sum of money in
the apartment. Both Dominguez and Coleman were armed with handguns.
Dominguez admitted he hit one of the girls with his gun, but only because
Coleman instructed him to and he felt compelled to obey Coleman’s orders.




                                     3
                           STATE v. COLEMAN
                           Decision of the Court

He also testified he believed committing the crimes would raise his
standing in the gang.

¶9            Detective Robert McKinney testified as a gang expert and
explained that gang members elevate their status by participating in
criminal activity. He also testified that a willingness to commit crimes
demonstrates gang loyalty and opined that a home invasion committed by
several members of a gang is a “gang motivated” crime.

¶10             Coleman testified in his defense. According to Coleman, on
the evening of April 19, 2013, he called Dominguez to pick him up from his
girlfriend’s party. Because he had consumed wine, beer, and vodka,
Coleman testified he was so drunk he passed out. When he awoke, he was
seated in the passenger seat of a parked vehicle with its engine running.
Noticing the driver’s-side door was open, Coleman slid into the driver’s
seat to close the door when he heard a helicopter overhead. Just as Coleman
slid into the driver’s seat, Dominguez jumped in the vehicle and Coleman
started driving. Eventually, the vehicle hit a curb, the driver’s air bag
deployed, and he and Dominguez ran. Coleman denied any knowledge of
the weapons later found in the vehicle but admitted he previously self-
identified as a Broadway Gangster, although he no longer considered
himself an active gang member.

¶11            Following a twenty-six-day jury trial, Coleman was convicted
as charged. The jury also found, as an aggravating circumstance, that the
victims were under age fifteen at the time of the offenses. The trial court
sentenced Coleman to twelve years’ imprisonment for each count of armed
robbery and burglary, four and one-half years’ imprisonment for unlawful
flight from a law enforcement vehicle, ten years’ imprisonment for assisting
a criminal street gang, and fifteen years’ imprisonment for each count of
kidnapping. The court ordered the sentences run concurrently, except the
sentences for kidnapping were consecutive to each other and all other
counts, for a total cumulative sentence of forty-two years’ imprisonment.
Coleman timely appealed. We have jurisdiction pursuant to Arizona
Revised Statutes (A.R.S.) sections 12-120.21(A)(1),2 13-4031, and -4033(A)(1),
(4).




2     Absent material changes from the relevant date, we cite a statute’s
current version.


                                      4
                           STATE v. COLEMAN
                           Decision of the Court

                               DISCUSSION

   I.      Motion to Sever Charges

¶12            Coleman first contends the trial court erred by denying his
motion to sever the count of assisting a criminal street gang from the other
charges. We generally review the denial of a motion to sever for an abuse
of discretion. See State v. Prince, 204 Ariz. 156, 159, ¶ 13 (2003) (citation
omitted). Because Coleman failed to renew his objection at or before the
end of trial, however, we review only for fundamental error. See Ariz. R.
Crim. P. 13.4(c) (explaining a defendant must renew a motion to sever
offenses “during trial at or before the close of the evidence” or “[s]everance
is waived”); State v. Goudeau, 239 Ariz. 421, 443, ¶ 54 (2016) (citing State v.
Laird, 186 Ariz. 203, 206 (1996)). Under this standard of review, a defendant
bears the burden of proving both fundamental error and resulting
prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005) (citations
omitted).

¶13           Several months prior to trial, Coleman joined in a co-
defendant’s motion to sever the count of assisting a criminal street gang
from the other charges. At a hearing on the motion, the trial court noted
that evidence of the armed robbery, kidnapping, and burglary charges
would necessarily be admitted at a separate trial on the count of assisting a
criminal street gang because those were the crimes alleged to have
benefitted the Broadway Gangsters. Defense counsel argued severance was
appropriate because Dominguez had denied the crimes were committed for
the benefit of the gang. In response, the State argued that evidence
regarding Coleman’s gang affiliation was relevant to motive on all the
crimes charged and the jury, as fact-finder, should determine whether
Coleman intended to benefit the gang when he participated in the home
invasion.

¶14            After taking the matter under advisement, the trial court
denied the motion to sever, finding all of the charges “arose out of the same
conduct and were connected together in their commission.” The court also
concluded that Dominguez’s statement that the robbery was not committed
to benefit the Broadway Gangsters did not “affect th[e] analysis.” Instead,
the jurors would “decide whether the State [proved] the charges beyond a
reasonable doubt and whether Dominguez’s testimony [wa]s credible.”

¶15          As set forth in Arizona Rule of Criminal Procedure 13.3(a),
joinder of two or more offenses is permissible when they: “(1) [a]re of the
same or similar character; or (2) [a]re based on the same conduct or are



                                      5
                            STATE v. COLEMAN
                            Decision of the Court

otherwise connected together in their commission; or (3) [a]re alleged to
have been a part of a common scheme or plan.” When offenses are properly
joined under Rule 13.3(a)(2) or (3), severance is required only if “necessary
to promote a fair determination of the guilt or innocence of any defendant
of any offense.” Ariz. R. Crim. P. 13.4(a); State v. Miller, 234 Ariz. 31, 38, ¶
18 (2013).

¶16            Applying these rules, we find no error. The charges against
Coleman were properly joined by the trial court pursuant to Rule 13.3(a)(2)
because the charges all arose from the same conduct. That is, the armed
robbery, kidnapping, burglary, and unlawful flight were the predicate
felony offenses underpinning the charge of assisting a criminal street gang.
See A.R.S. § 13-2321(B) (“A person commits assisting a criminal street gang
by committing any felony offense, whether completed or preparatory for the
benefit of, at the direction of or in association with any criminal street
gang.”) (emphasis added). Alternatively, the charges against Coleman
were properly joined under Rule 13.3(a)(3) because the offenses were part
of a common scheme, and the evidence reflects the scheme was motivated,
at least in part, to assist a criminal street gang.3 And, because the charges
all stem from a single course of conduct or common scheme, joinder
properly placed before the jury the relevant evidence regarding motive and
plan formation. Thus joinder, not severance, promoted a fair determination
of the offenses. See Ariz. R. Crim. P. 13.4(a).

¶17            Moreover, Coleman cannot show “compelling prejudice
against which the trial court was unable to protect,” see State v. Murray, 184
Ariz. 9, 25 (1995) (quoting State v. Cruz, 137 Ariz. 541, 544 (1983)), where, as
here, “the trial court instructed the jury to consider each count separately
and explained that the State bore the burden to ‘prove each element of each
charged crime beyond a reasonable doubt,’” Miller, 234 Ariz. at 38, ¶ 18
(quoting Hausner, 230 Ariz. at 75, ¶ 48); accord Goudeau, 239 Ariz. at 446,
¶ 67 (explaining the defendant could not demonstrate prejudice in the
denial of severance because “[w]e presume jurors follow[ed] the court’s
instructions” to consider each charged offense separately) (citation
omitted). But see State v. Burns, 237 Ariz. 1, 14-15, ¶¶ 36-39 (2015)
(concluding a trial court’s denial of a motion to sever a misconduct-
involving-weapons charge from murder and sexual assault charges was an
abuse of discretion, notwithstanding proper instructions to the jury,
because the necessary admission of the fact that the defendant had

3       Because we find joinder appropriate under Rule 13.3(a)(2) and (3),
we need not address Coleman’s arguments concerning Rule 13.3(a)(1). See
State v. Hausner, 230 Ariz. 60, 74, ¶ 44 (2012).


                                       6
                              STATE v. COLEMAN
                              Decision of the Court

previously been convicted of a felony was both unfairly prejudicial and
irrelevant to the other charges). Therefore, we find no error, much less
fundamental, prejudicial error, in the denial of Coleman’s motion to sever
charges.

   II.     Length of Sentence

¶18           Coleman further argues the cumulative length of his sentence
— forty-two years — is grossly disproportionate to the crimes he
committed and violates the constitutional protection against cruel and
unusual punishment. Specifically, Coleman contends he was a “passive”
participant in a series of crimes in which “no one was seriously hurt,” yet
his sentence is more onerous than sentences routinely imposed for more
severe and violent crimes. We review de novo whether a sentence
constitutes cruel and unusual punishment. See State v. Kasic, 228 Ariz. 228,
231, ¶ 15 (App. 2011) (citing State v. Dann, 220 Ariz. 351, 358, ¶ 27 (2009)).
Absent some abuse of discretion, we will not disturb a sentence within the
statutory range. State v. Joyner, 215 Ariz. 134, 137, ¶ 5 (App. 2007) (citing
State v. Russell, 175 Ariz. 529, 534 (App. 1993)). “An abuse of discretion
occurs when the trial court fails to conduct an adequate investigation into
the facts relevant to sentencing.” Russell, 175 Ariz. at 534 (citing State v.
Calderon, 171 Ariz. 12, 13 (App. 1991)).

¶19             The legislature has mandated that the sentence imposed for a
dangerous crime against children “shall be consecutive to any other
sentence imposed on the person at any time.” A.R.S. § 13-705(M)
(permitting concurrent sentencing for a dangerous crime against children
only when the offense involves child molestation or sexual abuse of a single
victim and the other offense is not a dangerous crime against children); see
also State v. Jones, 235 Ariz. 501, 503 n.1, ¶ 7 (2014) (citing State v. Tsinnijinnie,
206 Ariz. 477, 479-80, ¶¶ 11-17 (App. 2003)). The term “dangerous crime
against children” includes the act of kidnapping “a minor who is under
fifteen years of age.” A.R.S. § 13-705(P)(1)(i).

¶20            Applying the statute here, Coleman’s convictions for armed
robbery, burglary, unlawful flight, and promoting a criminal street gang
could be served concurrently; however, the sentences for kidnapping were
statutorily mandated to be served consecutively, both as to the other counts
and each other. A.R.S. § 13-705(M); see also Jones, 235 Ariz. at 503, ¶¶ 9, 11.
In addition, if a person is convicted of “any felony offense with the intent
to promote, further or assist any criminal conduct by a criminal street
gang,” the presumptive minimum sentence for a class two felony is
enhanced by five years. See A.R.S. § 13-714. Accordingly, the minimum


                                          7
                            STATE v. COLEMAN
                            Decision of the Court

sentence authorized by law for armed robbery and first degree burglary,
both class two felonies, was increased to twelve years, see A.R.S. §§ 13-
704(A), -1508(B), -1904(B), and the minimum sentence authorized by law
for each count of kidnapping a child under the age of fifteen was increased
to fifteen years, see A.R.S. § 13-705(D), resulting in a cumulative minimum
sentence of forty-two years’ imprisonment. Therefore, Coleman received
the minimum sentence permitted under Arizona’s sentencing scheme, and
we find no abuse of discretion.

¶21           Turning to the constitutionality of the sentence, the Eighth
Amendment to the United States Constitution bars the infliction of “cruel
and unusual punishments.” U.S. Const. amend. VIII. This prohibition has
been applied to lengthy prison sentences, but “noncapital sentences are
subject only to a ‘narrow proportionality principle’ that prohibits sentences
that are ‘grossly disproportionate’ to the crime.” State v. Berger, 212 Ariz.
473, 475, ¶ 10 (2006) (quoting Ewing v. California, 538 U.S. 11, 20, 23 (2003)).
Accordingly, “only in ‘exceedingly rare’ cases will a sentence to a term of
years violate the Eighth Amendment’s prohibition on cruel and unusual
punishment.” Id. at 477, ¶ 17 (quoting Ewing, 538 U.S. at 22).

¶22          In reviewing the constitutionality of a sentence, we first
determine whether “there is a threshold showing of gross
disproportionality by comparing ‘the gravity of the offense and the
harshness of the penalty.’” Id. at 476, ¶ 12 (quoting Ewing, 538 U.S. at 28,
and citing Harmelin v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J.,
concurring in part and concurring in the judgment)). “If this comparison
leads to an inference of gross disproportionality,” we then “test[] that
inference by considering the sentences the state imposes on other crimes
and the sentences other states impose for the same crime.” Id. (citations
omitted).

¶23           When evaluating whether a sentence is excessive, courts
“must accord substantial deference to the legislature and its policy
judgments as reflected in statutorily mandated sentences.” Id. at ¶ 13. In
so doing, a court must “determine whether the legislature ‘has a reasonable
basis for believing that a sentencing scheme advances the goals of its
criminal justice system in any substantial way.’” Id. at 477, ¶ 17 (quoting
Ewing, 538 U.S. at 28). “A prison sentence is not grossly disproportionate,
and a court need not proceed beyond the threshold inquiry, if it arguably
furthers the State’s penological goals and thus reflects a ‘rational legislative
judgment, entitled to deference.’” Id. (quoting Ewing, 538 U.S. at 30).
Additionally, in comparing the gravity of a crime and the severity of the
punishment, we consider whether “the sentence imposed for each specific


                                       8
                            STATE v. COLEMAN
                            Decision of the Court

crime” is excessive — not the imposition of consecutive sentences. Id. at
479, ¶¶ 27-28 (quoting United States v. Aiello, 864 F.2d 257, 265 (2d Cir. 1988),
and citing State v. Jonas, 164 Ariz. 242, 249 (1990), then State v. Davis, 206
Ariz. 377, 387, ¶ 47 (2003)). An otherwise proportionate sentence does not
offend the Eighth Amendment “merely because it is consecutive to another
sentence for a separate offense or because the consecutive sentences are
lengthy in aggregate.” Id. at ¶ 28 (citing Jonas, 164 Ariz. at 249).

¶24             We do not find a sentence of fifteen years’ imprisonment
grossly disproportionate to the crime of kidnapping a child under the age
of fifteen for the purpose of benefiting a criminal street gang. Nor can we
say a sentence of twelve years’ imprisonment is grossly disproportionate to
the crimes of armed robbery and first degree burglary in furtherance of a
criminal street gang.        Because the individual sentences are not
disproportionate to the crimes and we do not consider the cumulative
sentence in the proportionality inquiry, Coleman’s sentences were not
clearly excessive in violation of the constitutional proscription against cruel
and unusual punishment, and we find no error.

                               CONCLUSION

¶25           Coleman’s convictions and sentences are affirmed.




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




                                         9
