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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     TYLER SCOTT KOLEY, Appellant.

                             No. 1 CA-CR 15-0652
                               FILED 12-1-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002703-001
              The Honorable George H. Foster, Jr., Judge

      CONVICTION AFFIRMED; SENTENCE VACATED; AND
                      REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                            STATE v. KOLEY
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Andrew W. Gould and Judge Patricia A. Orozco joined.


S W A N N, Judge:

¶1            Tyler Scott Koley appeals his conviction and sentence for
aggravated assault. For the reasons that follow, we affirm Koley’s
conviction, vacate his sentence, and remand for resentencing.

                FACTS AND PROCEDURAL HISTORY1

¶2            In May 2014, eleven-year-old E.G. lived in the same
apartment building as Koley. E.G. considered Koley a friend, and Koley
often visited her apartment to play video games. On May 18, 2014, E.G.
was in her apartment when she and her father heard Koley and the victim
arguing outside. Concerned by the heated exchange, E.G.’s father went
outside and defused the situation. Koley then came over to play video
games with E.G.’s brothers for thirty to sixty minutes, and left.

¶3            Later in the day, the victim had a large, outdoor family
gathering at his residence, which was located across the street from Koley’s
apartment building. At some point, Koley came outside to smoke a
cigarette and glared in the family’s direction. A verbal altercation ensued
between Koley and the victim.

¶4            Once again, E.G. overheard Koley and the victim arguing
outside her apartment. Curious, E.G. went outside and heard the victim
say, “If you want we can handle this right now. If you want, I’ll put my
baby down.” Koley answered, “Well, put your baby down that’s the last
time you’re seeing it.” The victim, who was holding his infant child,
handed the infant to his wife and walked toward Koley saying, “Come at
me [racial epithet].”

¶5          As the men stood face to face, Koley stabbed the victim in the
abdomen. The victim immediately covered his abdominal wound with his
hands and Koley stabbed him a second time, piercing his hand. When the

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


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                            STATE v. KOLEY
                           Decision of the Court

victim turned to retreat, Koley stabbed him a third time in the back, and the
victim stumbled a few feet and collapsed. While the victim lay bleeding on
the ground, Koley ran to his upstairs apartment.

¶6           The victim’s sister called 9-1-1. Within a few minutes, Officer
W. arrived and found the victim’s family members gathered around him,
trying to apply pressure to his wounds. Paramedics arrived and
transported the victim to the hospital.

¶7            Meanwhile, Koley’s girlfriend, Rasheeda, called 9-1-1 to
report that Koley had stabbed the victim. While Rasheeda spoke with the
dispatcher, Koley told Rasheeda that he stabbed the victim because he
believed the victim was going to hurt him. Police officers arrived at Koley’s
apartment, and the dispatcher provided instructions for Koley’s surrender
to police. Koley cooperated with the officers, informed them where he put
the knife, and was taken into custody.

¶8           The State charged Koley with one count of attempt to commit
first-degree murder and one count of aggravated assault and alleged
aggravating circumstances.

¶9           The victim was hospitalized for three to four days and had
multiple surgeries. At trial, the victim acknowledged having a heated
exchange with Koley and walking toward him, but testified that he had no
weapon on him.

¶10           Koley testified that he acted in self-defense. On the morning
of the incident, Koley overheard the victim tell another neighbor that “we
got snitches out here” and saw him spit in Koley’s direction. Concerned
that he was being labeled a snitch, which could put his life and family in
danger, Koley confronted the victim. Koley testified that right before the
altercation, when he and the victim again exchanged threatening words, the
victim walked toward him with two other men. Koley saw the victim reach
toward his waistband, so he pulled out his knife and stabbed the victim.
Koley acknowledged that the victim never touched him or displayed a
weapon. He admitted that he intentionally stabbed the victim three times
but only did so because he believed the victim would hurt him.

¶11           After a seven-day trial, the jury found Koley not guilty of
attempted first-degree murder, not guilty of attempted second-degree
murder, not guilty of attempted manslaughter, and guilty of aggravated
assault. The jury also found two aggravating factors. The trial court found
the aggravating factors outweighed the mitigating factors and sentenced
Koley to a slightly aggravated sentence of eight and one-half years’


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                             STATE v. KOLEY
                            Decision of the Court

imprisonment. Koley timely appeals. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                DISCUSSION

I.     FAILURE TO INSTRUCT RECONSTITUTED JURY TO BEGIN
       DELIBERATIONS ANEW

¶12            Koley contends the trial court erred by failing to instruct a
reconstituted jury to commence its deliberations anew. Because Koley did
not raise this objection in the trial court, we review only for fundamental,
prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005).

¶13            Given the possible length of sentence associated with the
charged offenses, fourteen jurors were impaneled at trial. After the parties
presented their closing arguments and the trial court admonished the jurors
with final instructions, the court clerk selected two alternates by lot and the
court instructed the alternates that they would not “initially deliberate,” but
could be called back to deliberate if one of the other jurors was unable to
continue. The court further explained that, in such an event, “we have to
start deliberations all over again,” so the admonition not to discuss or
research the case still applied. Both jurors acknowledged and understood
these additional instructions.

¶14           The jury deliberated for about thirty minutes then recessed,
planning to continue deliberations the following morning at 9:30 a.m.
However, the jury did not resume until almost 11 a.m. Alternate Juror 10
joined the deliberations at that time, and Juror 8 was excused. Those
proceedings were not recorded. Instead, the transcript for July 23, 2015,
begins at 4:11 p.m., when the court reconvened to hear the jury’s verdicts.

¶15            Pursuant to Arizona Rules of Criminal Procedure (“Rule”)
18.5(h), “[i]n the event a deliberating juror is excused . . ., the court may
substitute an alternate juror . . . to join in the deliberations. If an alternate
joins the deliberations, the jury shall be instructed to begin deliberations
anew.” (emphasis added). Although failing to instruct a reconstituted jury
to commence deliberations anew is clear error, “the omission of such an
instruction does not always require reversal of a conviction.” State v.
Kolmann, 239 Ariz. 157, 162, ¶ 19 (2016); see also Claudio v. Snyder, 68 F.3d
1573, 1577 (3d Cir. 1995). To evaluate whether a defendant was prejudiced
by the error, such that a properly instructed jury “could have reached a
different result,” a reviewing court should consider: (1) whether other jury
instructions ameliorated the error; (2) the length of time the jury deliberated
before and after reconstitution; and (3) the strength of the evidence against


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                             STATE v. KOLEY
                            Decision of the Court

the defendant. State v. Dalton, 239 Ariz. 74, 78, ¶ 9 (App. 2016), review
granted (Ariz. Aug. 30, 2016).

¶16           Because Koley apparently waived a recording of the morning
proceedings, the record does not reflect whether the reconstituted jury was
provided additional instructions. Unlike in Dalton, where the State
acknowledged “that the superior court did not instruct the jury to begin its
deliberations anew when the alternate joined it,” 239 Ariz. at 75, ¶ 1, the
State here argues that, in the absence of transcripts, we should presume the
trial court properly instructed the jury. The record does not reflect that
Koley objected to the trial court proceeding without a reporter on the
morning of July 23, 2015, when Juror 8 was excused and the jury
reconstituted. Because it “is the duty of counsel” to ensure the record
“contains the material to which they take exception,” when “matters are not
included in the record on appeal, the missing portions of the record will be
presumed to support the action of the trial court.” State v. Zuck, 134 Ariz.
509, 513 (1982). Therefore, in the absence of a record or concession by the
State, we presume the trial court complied with Rule 18.5(h).

¶17            Even assuming arguendo that the trial court failed to properly
instruct the reconstituted jury, Koley has failed to demonstrate any
prejudice. Applying the Dalton factors, first, the court’s instruction to the
alternates, given in the presence of the other jurors, that deliberations must
begin anew in the event either alternate was called back to deliberate, at
least partially ameliorated any failure to follow Rule 18.5(h). Second, the
record reflects that the original jury deliberated for only one-half hour, and
the reconstituted jury for over four hours. Though the jury may have
recessed during that time, the clear majority of the deliberations took place
amongst the reconstituted jurors. Finally, the evidence against Koley on the
assault charge was overwhelming. Multiple witnesses testified that the
victim was unarmed and never touched Koley before the stabbing.

¶18             More importantly, the uncontroverted evidence reflects that
Koley used a deadly weapon to intentionally cause physical injury to the
victim without justification, and no reasonable jury could have found
otherwise. Koley testified that he intentionally and repeatedly stabbed the
victim, though claiming he feared for his own safety. Consistent with the
trial court’s instruction to the jury, however, self-defense justifies the use of
deadly physical force only while the apparent danger continues, no longer.
A.R.S. § 13-404(A); see also State v. Barker, 94 Ariz. 383, 389 (1963). Even
accepting Koley’s testimony that he feared for his safety when the victim
approached him motioning toward his waistband, any danger the victim
presented before the first stabbing arguably ended before the second


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                             STATE v. KOLEY
                            Decision of the Court

stabbing, when the victim was clutching his abdomen with his hands, and
indisputably ended before the third stabbing, when the victim had turned
away from Koley, still clutching his abdomen and trying to retreat.

II.    IMPOSITION OF AGGRAVATED SENTENCE

¶19            Koley argues that the trial court erred by imposing an
aggravated sentence. Defense counsel timely objected, and we review for
harmless error. Henderson, 210 Ariz. at 567, ¶ 18 (2005). “Harmless error
review places the burden on the state to prove beyond a reasonable doubt
that the error did not contribute to or affect the verdict or sentence.” Id.
“[W]hether a particular aggravating factor used by the court is an element
of the offense and whether the court properly can use such a factor in
aggravation are questions of law, which we review de novo.” State v.
Tschilar, 200 Ariz. 427, 435, ¶ 32 (App. 2001).

¶20           The State charged Koley with aggravated assault based on his
use of a deadly weapon to physically injure the victim. The State also
alleged it was a dangerous felony because the offense involved the use of a
deadly weapon to inflict “serious physical injury.” In addition, the State
alleged two aggravating circumstances: (1) the infliction of serious physical
injury and (2) the use of a deadly weapon.

¶21           In its final instructions to the jury, the trial court informed the
jurors that, to prove aggravated assault, the State was required to
demonstrate that Koley committed an assault and either: (1) caused the
victim serious physical injury, or (2) used a deadly weapon or dangerous
instrument. Referencing this instruction during his closing statements, the
prosecutor conflated the elements and argued the jury needed to find Koley
intentionally inflicted “serious physical injury” on the victim by using “a
deadly weapon” in order to convict Koley of aggravated assault.

¶22           After submitting the case to the jury, the trial court told the
prosecutor it would allow him to “argue [his] aggravators” but that the
court would not be bound by the jury’s findings. Specifically, the court
noted that the aggravated assault charge was aggravated “because of the
use of a deadly weapon,” and therefore the use of a deadly weapon could
not be used as “an aggravator on top of that.”

¶23           Before closing arguments in the aggravation phase, defense
counsel objected to both aggravators alleged by the State, arguing they were
elements of the offense of aggravated assault already found by the jury. The
trial court overruled the objection, allowing the jury to make its findings,
and stated that it would decide the issue at sentencing.


                                       6
                            STATE v. KOLEY
                           Decision of the Court

¶24           The jury found the State had proven both aggravators alleged
and that the offense was dangerous. At sentencing, the court noted defense
counsel’s renewed objection that the use of a dangerous weapon was
encompassed within the aggravated assault charge, but found the
aggravating factors outweighed the mitigating factors and imposed a
slightly aggravated sentence.

¶25             “An element of an offense may be used as an aggravating
factor if the legislature has specified that it may be so used.” Tschilar, 200
Ariz. at 435, ¶ 33. The State concedes that the use of aggravating factors
was not authorized in this case. We agree.

¶26           Pursuant to A.R.S. § 13-701(D), a court “shall consider the
following aggravating circumstances”: (1) infliction of serious physical
injury, “except if this circumstance is an essential element of the offense of
conviction or has been utilized to enhance the range of punishment” under
A.R.S. § 13-704 (dangerousness); or (2) use of a deadly weapon, “except if
this circumstance is an essential element of the offense of conviction or has
been utilized to enhance the range of punishment” under A.R.S. § 13-704
(dangerousness).

¶27            As conceded by the State, the use of a deadly weapon was an
essential element of the assault and used to enhance the punishment as an
aggravating circumstance and for the dangerousness finding. Therefore,
use of a deadly weapon could not properly be used as an aggravating
circumstance. See State v. Glassel, 211 Ariz. 33, 57 n.17, ¶ 101 (2005)
(explaining the trial court erred by relying on the defendant’s use of a
deadly weapon as an aggravating circumstance because the use of a deadly
weapon was used to enhance the range of punishment). Although Koley
was only charged with using a deadly weapon to intentionally cause the
victim “physical injury,” the jury instructions and the prosecutor’s closing
argument instructed the jury that serious physical injury was an element of
the aggravated assault. Therefore, infliction of serious physical injury was
an essential element of the offense and could not be used as an aggravating
factor. Since we cannot say the trial court would reach the same result
absent the error, we remand for resentencing. See State v. Pena, 209 Ariz.
503, 507, 509, ¶¶ 11, 23-24 (2005).




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                            STATE v. KOLEY
                           Decision of the Court

                              CONCLUSION

¶28           For the foregoing reasons, Koley’s conviction is affirmed; his
sentence is vacated; and the matter is remanded to the trial court for
resentencing.




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




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