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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                          DANIEL LAMB, Appellant.

                             No. 1 CA-CR 17-0485
                               FILED 7-19-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002808-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

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

Brown & Little P.L.C., Chandler
By Matthew O. Brown
Counsel for Appellant
                             STATE v. LAMB
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.


J O N E S, Judge:

¶1           Daniel Lamb appeals his conviction and sentence for one
count of possession of marijuana. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             On June 16, 2010, in the course of investigating Lamb’s alleged
involvement in a home invasion, a detective discovered a baggie of
marijuana in Lamb’s car.1 In October 2014, Lamb was indicted on one count
each of conspiracy to commit armed robbery, burglary, and armed robbery,
all alleged to have occurred on June 3, 2010, as well as one count of
possession of marijuana, based on the marijuana found in Lamb’s car on
June 16. In November 2015, the trial court granted Lamb’s request to waive
his right to counsel and represent himself.

¶3             In February 2016, the trial court granted Lamb’s pro se motion
to sever the marijuana count from the other charges. Between February and
August 2016, Lamb withdrew his waiver of counsel, fired his first court-
appointed attorney, and was assigned a second court-appointed attorney.
The case was then reassigned to a different division of the superior court
for trial. A four-day trial commenced in May 2017, where all four counts
were tried together.

¶4           At the conclusion of the State’s evidence, Lamb moved for
judgment of acquittal “on all counts with the exception to the marijuana
charge.” The trial court granted judgment of acquittal for conspiracy to
commit armed robbery and then instructed the jury as to the elements of
burglary, armed robbery, and possession of marijuana. The court further
advised:


1      “We view the facts in the light most favorable to sustaining the
conviction[] with all reasonable inferences resolved 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. LAMB
                            Decision of the Court

       Each count charges a separate and distinct offense. You must
       decide each count separately on the evidence with the law
       applicable to it, uninfluenced by your decision on any other
       count. You may find that the State has proved beyond a
       reasonable doubt, all, some or none of the charged offenses.
       Your finding for each count must be stated in a separate
       verdict.

The jury acquitted Lamb of burglary and armed robbery and convicted him
of just one count: possession of marijuana.

¶5            One week later, Lamb moved to vacate the conviction arguing
the marijuana charge should have been tried separately based upon the
February 2016 order. At the hearing on the motion, Lamb’s counsel averred
that he had raised the severance issue during an unrecorded bench
conference during jury selection to no avail. The trial court denied the
motion, noting it had “no independent memory” of severance having been
raised during jury selection and further found Lamb had failed to prove he
was prejudiced by the error. The court then sentenced Lamb as a non-
dangerous, non-repetitive offender to one year of imprisonment with credit
for 656 days of presentence incarceration. Lamb timely appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).

                               DISCUSSION

¶6             Lamb argues the trial court erred when it proceeded to trial
on all the charges after the marijuana charge had been severed. The parties
dispute whether counsel’s avowal of the contents of the unrecorded bench
conference was sufficient to preserve the issue for appeal. We need not
reach this issue, however, because we are convinced beyond a reasonable
doubt that the error did not contribute to or affect the verdict or sentence.
See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 18-20 (2005) (explaining that
when an issue is preserved, the appellate court reviews for harmless error
— requiring the state to prove beyond a reasonable doubt that the error had
no effect on the verdict or sentence — and when an issue is not preserved,
the appellate court reviews for fundamental error — requiring the
defendant to prove the error prejudiced him).

¶7            Lamb argues “the very serious, highly disturbing and
prejudicial armed robbery counts affect[ed] [the jury’s] judgment as to the
marijuana count.” But the jury’s acquittal of Lamb on the two more serious
charges suggests the jurors followed the judge’s instruction to consider each



                                      3
                             STATE v. LAMB
                           Decision of the Court

count separately. See State v. Stuard, 176 Ariz. 589, 600 (1993) (considering
the acquittal of the defendant on some counts as evidence that “the jury
followed the judge’s instructions and considered the evidence separately
on each charge”).

¶8             Moreover, the evidence against Lamb on the marijuana
charge was overwhelming. See State v. Gallegos, 178 Ariz. 1, 11 (1994)
(concluding beyond a reasonable doubt that an error had no effect on the
jury’s verdict where there was overwhelming evidence of guilt). At trial,
the State introduced evidence that the detective performed a traffic stop of
Lamb’s vehicle pursuant to a court order to obtain physical evidence from
him. When asked if he had any illegal items or weapons in the vehicle,
Lamb, the only occupant, answered affirmatively. The detective then found
marijuana in a small case on the backseat next to a prescription medication
bottle bearing Lamb’s name. Indeed, Lamb’s counsel specifically excluded
the marijuana charge from his motion for judgment of acquittal, conceding
the State had presented sufficient evidence to warrant conviction on that
charge.

¶9           On this record, we find no prejudicial error.

                               CONCLUSION

¶10          Lamb’s conviction and sentence are affirmed.




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




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