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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     JOHN ALLEN STAMM, Appellant.

                             No. 1 CA-CR 17-0789
                               FILED 12-4-2018


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201601527
                        No. P1300CR201700015
          The Honorable Jeffrey G. Paupore, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

C. Kenneth Ray II PLLC, Prescott
By C. Kenneth Ray II
Counsel for Appellant
                             STATE v. STAMM
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Chief Judge Samuel A. Thumma
joined.


B R O W N, Judge:

¶1           John Allen Stamm appeals his convictions and sentences for
assault, disorderly conduct, unlawful discharge of a firearm, and
harassment. He argues the trial court erred by consolidating his charges for
trial and admitting recordings of his jail calls in violation of federal law. For
the following reasons, we affirm.

                              BACKGROUND1

¶2             In October 2016, Stamm and his wife, D.S., got into an
argument. As the argument intensified, Stamm chased D.S. around their
property. When she locked Stamm out of their home, he forced his way
back in, yelling, “[w]e’re done. . . I’m going to end it now, and I’m going to
show you how.” Stamm then walked into his office, where he stored his
guns. D.S. fled, hearing two gunshots after she ran out of the house. When
police later surrounded the home, Stamm shot himself.

¶3            After his release from the hospital, police arrested Stamm.
Although a court had ordered Stamm to neither go near the location of the
offense nor contact D.S., Stamm called her work many times while in jail.
And, even though he was served with an order of protection requiring him
to stay away from her workplace, just one day later she saw him slowly
driving in the alleyway behind her workplace.

¶4           The State charged Stamm with aggravated assault, unlawful
discharge of a firearm, and disorderly conduct for the October incident
(“2016 indictment”). In a subsequent indictment (“2017 indictment”), the
State charged him with stalking, harassment, aggravated harassment, and
interfering with a judicial proceeding for his actions following his release
from the hospital. Stamm filed a motion in limine to preclude the State from


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


                                       2
                             STATE v. STAMM
                            Decision of the Court

admitting testimony relating to the 2016 indictment in the separate trial for
the 2017 indictment. In response, the State argued that evidence relating to
the 2016 indictment was both intrinsic to the offenses charged in the 2017
indictment and cross-admissible in both trials under Arizona Rule of
Evidence 404(b). After a hearing, the trial court concluded the evidence was
intrinsic because it directly proved the charged offense. Soon after, the State
moved to consolidate the cases for trial under Arizona Rule of Criminal
Procedure (“Rule”) 13.3. Granting the motion to consolidate over Stamm’s
objection, the court reaffirmed its earlier finding that the evidence was
intrinsic and alternatively found that the evidence would be cross-
admissible under 404(b).

¶5           After consolidation, Stamm filed motions to suppress
recordings of his jailhouse calls at trial, arguing the recordings should be
excluded because the State obtained them in violation of federal law. The
court denied Stamm’s motions.

¶6             A jury found Stamm guilty of (1) assault (as a lesser-included
offense); (2) disorderly conduct; (3) harassment; and (4) unlawful discharge
of a firearm but acquitted him on the remaining charges. The trial court
sentenced Stamm to time served for assault and harassment; 1.75 years’
imprisonment for a disorderly conduct charge; and three years’ probation
for unlawful discharge of a firearm. This timely appeal followed.

                               DISCUSSION

       A.     Joinder of Charges

¶7             Stamm first argues the court erred by consolidating the
offenses charged in the two indictments and denying his motions to sever.
We review these rulings for an abuse of discretion. State v. Hausner, 230
Ariz. 60, 74, ¶ 43 (2003) (citation omitted). We proceed in two steps, first
asking “if the joinder and denial of severance were proper under Rules 13.3
and 13.4” and, if not, asking “whether the error requires reversal.” State v.
Garland, 191 Ariz. 213, 216, ¶ 9 (App. 1998) (citations omitted). A court may
join offenses if any ground listed in Rule 13.3(a) is satisfied, and need not
grant severance unless “necessary to promote a fair determination of . . .
guilt or innocence of any offense.” Ariz. R. Crim. P. 13.4(a); Hausner, 230
Ariz. at 74, ¶ 44. “In considering whether the trial court erred . . . we are
mindful that the trial court exercises considerable discretion in determining
whether, in light of the evidence then before the court, the defendant has made
the requisite showing of prejudice.” State v. Van Winkle, 186 Ariz. 336, 339
(1996) (emphasis added).



                                      3
                             STATE v. STAMM
                            Decision of the Court

¶8             Offenses may be joined if they “are based on the same conduct
or are otherwise connected together in their commission.” Ariz. R. Crim. P.
13.3(a)(2). Offenses are “otherwise connected” when they arise “out of a
series of connected acts, and the evidence as to each count, of necessity,
overlaps” or “where most of the evidence admissible in proof of one offense
[is] also admissible in proof of the other.” Garland, 191 Ariz. at 217, ¶ 14
(alteration in original) (citation omitted). We agree with the State that this
ground is satisfied here because much of the evidence relating to the 2016
indictment would necessarily have overlapped with the crimes charged in
the 2017 indictment to explain Stamm’s motive and intent, as well as D.S.’s
state of mind. In short, these two indictments arise “out of a series of
connected acts, provable by much of the same evidence,” permitting
joinder. See State v. Prince, 204 Ariz. 156, 160, ¶ 17 (citation omitted).

¶9             Although the offenses were eligible for joinder under Rule
13.3(a)(2), we must next determine if the trial court erred in proceeding with
consolidation, which turns on whether severance was necessary to promote
a fair determination of Stamm’s guilt or innocence. Ariz. R. Crim. P. 13.4(a).
A defendant is not prejudiced when introduction of the joined evidence
would be permitted “for an evidentiary purpose anyway.” State v. Stuard,
176 Ariz. 589, 597 (1993) (quoting Morris K. Udall et al., Arizona Practice—
Law of Evidence § 84, at 184 n.14 (3d ed. 1991)). Here, the court’s
simultaneous finding that the evidence would be admissible under 404(b)
plainly demonstrates that, in light of the evidence then before it, Stamm
failed to make the requisite showing of prejudice. See Van Winkle, 186 Ariz.
at 339. Stamm has neither challenged the court’s 404(b) finding in this
appeal nor otherwise provided us with a compelling reason to disturb the
court’s exercise of discretion. Accordingly, Stamm has not shown the court
erred in joining the charges or in denying his request to sever.2

       B.     Admission of Recorded Calls

¶10           While Stamm was in jail, the facilities—according to standard
procedure—recorded his outgoing telephone calls. Stamm argues the
recording of these calls violated Title 18 of the United States Code (“U.S.C.”)
section 2511, which criminalizes, inter alia, the unlawful interception of oral
communications. 18 U.S.C. § 2511(1)(b), (4)(a). He contends the recordings
should have been suppressed according to the exclusionary rule codified at

2      Because we must affirm the trial court’s ruling if legally correct for
any reason, State v. Boteo-Flores, 230 Ariz. 551, 553, ¶ 7 (App. 2012), we do
not address Stamm’s additional argument that the evidence was not
intrinsic under State v. Ferrero, 229 Ariz. 239 (2012).


                                      4
                            STATE v. STAMM
                           Decision of the Court

18 U.S.C. § 2515. Applying our de novo review, Payne, 233 Ariz. at 505,
¶ 68, we conclude that 18 U.S.C. § 2515 does not apply here because it
protects only “oral communication[s] uttered by a person exhibiting an
expectation that such communication is not subject to interception under
circumstances justifying such expectation,” 18 U.S.C. § 2510(2), and Stamm
had no justifiable expectation that his communications would not be
intercepted. Before being able to use the jail telephone system, the record
shows that inmates “understand and agree the telephone calls are subject
to monitoring and recording and may be intercepted or divulged.”
Additionally, any inmate making a call receives a notification that the call
would be subject to “monitoring and/or recording.” Thus, 18 U.S.C. § 2515
does not require suppression of Stamm’s recorded calls.

                              CONCLUSION

¶11          Stamm’s convictions and sentences are affirmed.




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




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