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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      KHANOR SANFORD, Appellant.

                             No. 1 CA-CR 16-0382
                               FILED 9-28-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-448856-002
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
                           STATE v. SANFORD
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Margaret H. Downie joined.


C A M P B E L L, Judge:

¶1            Khanor Sanford appeals his convictions and sentences for one
count of burglary in the first degree, a class 2 dangerous felony, and one
count of murder in the first degree, a class 1 dangerous felony. Sanford
argues the trial court abused its discretion by denying his motion to sever
his trial from that of his co-defendant. He contends he was severely
prejudiced by the joint trial and therefore his convictions and sentences
should be vacated. We disagree and affirm.

            FACTS AND PROCEDURAL BACKGROUND 1

¶2           Sanford and James Johns went to the apartment of a man with
whom Johns’ girlfriend had fought with earlier that day. Johns and Sanford
were both carrying guns. The victim was standing just inside the apartment
door trying to prevent their entrance, but Johns pushed through the
doorway. Sanford shot the victim and Johns repeatedly hit the victim in the
head with his gun. Johns and Sanford left the scene together.

¶3           Sanford and Johns were each indicted with one count of first-
degree burglary and one count of first-degree murder. Sanford filed a
motion to sever his trial from Johns’, which the trial court denied. Sanford
unsuccessfully renewed the motion at the outset of trial and again during
trial.

¶4           The jury found Sanford guilty of both counts. The superior
court sentenced Sanford to concurrent, presumptive terms of 10.5 years’
imprisonment on count 1, and life with the possibility of parole after 25
years on count 2.




1      We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against the appellant. State v.
Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007).


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                             STATE v. SANFORD
                             Decision of the Court

                                DISCUSSION

¶5             Defendants may be joined for trial “when each defendant is
charged with each offense included, or when the several offenses are part
of a common conspiracy, scheme or plan or are otherwise so closely
connected that it would be difficult to separate proof of one from proof of
the others.” Ariz. R. Crim. P. 13.3(b). Joint trials are the rule, in the interest
of judicial economy, despite some possibility of confusion. State v. Murray,
184 Ariz. 9, 25 (1995). The court must, however, grant a motion to sever the
trial of two or more defendants 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).

¶6             We review a court’s denial of a motion to sever the trials of
co-defendants for an abuse of discretion “in light of the evidence before the
court at the time the motion was made.” State v. Blackman, 201 Ariz. 527, 537
(App. 2002) (citations omitted). “A clear abuse of discretion is established
only when a defendant shows that, at the time he made his motion to sever,
he had proved his defense would be prejudiced absent severance.” Murray,
184 Ariz at 25. The defendant has the burden “to demonstrate that the
court’s failure to sever caused compelling prejudice against which the trial
court was unable to protect.” State v. Tucker, 231 Ariz. 125, 141, ¶ 40 (App.
2012). Prejudice occurs when:

              (1) evidence admitted against one defendant is
              facially incriminating to the other defendant, (2)
              evidence admitted against one defendant has a
              harmful rub-off effect on the other defendant,
              (3) there is significant disparity in the amount of
              evidence introduced against the defendants, or
              (4)    co-defendants       present     antagonistic,
              mutually exclusive defenses or a defense that is
              harmful to the co-defendant.

Murray, 184 Ariz. at 25 (citation omitted).

¶7              Sanford contends the trial court abused its discretion in
denying his motion to sever his trial from that of his co-defendant because
the joint trial caused him severe prejudice. He claims all four of the above
types of prejudice were present during the joint trial and beyond the power
of the trial court to prevent. He therefore claims his convictions and
sentences should be vacated. We disagree.




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                            STATE v. SANFORD
                            Decision of the Court

I.     Facial Incrimination

¶8           The parties do not dispute that, at trial, the prosecution
presented a videotaped interview between Johns and Detective McMillen.
During that interview, Detective McMillen told Johns he “[knew] Khanor
[Sanford] shot [the victim].” Sanford argues this statement was facially
incriminating because it gave the jury the impression law enforcement
knew for certain Sanford was the shooter.

¶9             During his testimony, however, Detective McMillen agreed
he tries to give suspects “opportunities to tell [him] what happened” and
“sometimes act[s] like [he] understand[s] what they might have done in
order to get them to talk” during interviews. Detective McMillen also
agreed he “might tell lies to the person [he is] questioning,” suggesting he
may have been trying to provoke Johns into giving up more information.
The jury was therefore aware the detective’s statement was not necessarily
true, and the statement was not necessarily incriminating on its face.

¶10           Furthermore, Sanford had the opportunity to cross-examine
Detective McMillen specifically about the statement and to clarify further,
but did not do so. Cf. Bruton v. U.S., 391 U.S. 123, 126 (1968) (“because of the
substantial risk that the jury . . . looked to the incriminating extrajudicial
statements [made by the co-defendant] in determining petitioner’s guilt,
admission of [the co-defendant’s] confession in [a] joint trial violated
petitioner’s” Sixth-Amendment right of cross-examination). The statement
was not brought up again by any party throughout the remainder of the
joint trial. Therefore, the detective’s statement was not facially
incriminating and did not cause Sanford compelling prejudice warranting
the “severe remedy” of a mid-trial severance. See State v. Lawson, 144 Ariz.
547, 555 (1985).

II.    “Rub-off” Effect

¶11            “’Rub-off’ occurs when the jury’s unfavorable impression of
the defendant against whom the evidence is properly admitted influence[s]
the way the jurors view the other defendant.” Tucker, 231 Ariz. at 142, ¶ 42
(citations omitted). This court has previously concluded, however, that if
under all circumstances, the jurors are capable of following the court’s
instructions, keeping the evidence relevant to each defendant separate, and
rendering a fair and impartial verdict as to each defendant, a court is not
required to sever a defendant’s trial due to rub-off. Id.

¶12         At trial, a witness testified that Sanford was the shooter;
contrary to Sanford’s argument, this testimony does not qualify as


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                            STATE v. SANFORD
                            Decision of the Court

prejudicial rub-off. First, the witness’ identification of Sanford was
cumulative to the testimony of at least one other witness. Further, this
testimony did nothing to provide the jury with an unfavorable impression
of co-defendant Johns that influenced the way the jurors viewed Sanford.
Second, Sanford’s contention that this witness’ identification “bolstered”
the State’s case fails to address why this statement would not be admissible
against Sanford at a separate trial. Third, detectives’ testimony that this
witness had previously indicated he could not identify both perpetrators
speaks to the witness’ credibility, not prejudicial rub-off. See State v. Soto-
Fong, 187 Ariz. 186, 200 (1996) (credibility of a witness is solely a matter for
the fact finder; court is not empowered to impose its own determination as
to a witness’ credibility). Therefore, Sanford did not experience prejudicial
rub-off warranting severance.

III.   Disparity of Evidence

¶13           Severance based on a significant disparity in evidence is
required only if, in relation to separate defendants, the jury is unable to
“compartmentalize” the evidence. State v. Grannis, 183 Ariz. 52, 59 (1995),
disapproved of on other grounds by State v. King, 225 Ariz. 87 (2010), as
recognized by Tucker, 231 Ariz. 125. Here, Sanford argues that more evidence
presented at trial linked Johns to the murder. He presents no argument,
however, that the jury was unable to compartmentalize that evidence as it
separately related to Johns and Sanford. Furthermore, the trial court
instructed the jury:

              There are two defendants. You must consider
              the evidence in the case as a whole. However,
              you must consider the charges against each
              defendant separately.

              Each defendant is entitled to have the jury
              determine the verdict as to each of the crimes
              charged based upon that defendant’s own
              conduct and from the evidence which applies to
              that defendant, as if that defendant were being
              tried alone.

              The defendant’s conduct may include acting as
              a principal and/or an accomplice.

There is nothing in the record indicating the jury was unable to follow this
instruction, nor that a significant disparity of evidence prejudiced Sanford.
See State v. Runnineagle, 176 Ariz. 59, 68 (1993) (curative instruction was


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                            STATE v. SANFORD
                            Decision of the Court

adequate to alleviate the risk of prejudice from a joint trial; disparity in the
weight of evidence against the defendants was not great enough to deny
the defendant a fair trial).

IV.    Antagonistic Defenses

¶14           Severance based on antagonistic defenses requires a
defendant to demonstrate his defense is “so antagonistic” to his co-
defendant’s that the defenses are mutually exclusive. State v. Cruz, 137 Ariz.
541, 545 (1983). Defenses are mutually exclusive “if the jury, in order to
believe the core of the evidence offered on behalf of one defendant, must
disbelieve the core of the evidence offered on behalf of the co-defendant.”
Id. The “mere presence of hostility between co-defendants, or the desire of
each co-defendant to avoid conviction by placing blame on the other,” does
not compel severance. Id. at 544.

¶15           Sanford’s theory of defense at trial was that he did not commit
the charged crimes. Sanford argues that co-defendant Johns’ defense was
extremely prejudicial to his own in three ways: first, Johns did not contest
most of the evidence presented at the joint trial; second, Johns claimed not
to be the shooter and impliedly deflected blame onto Sanford; and finally,
Johns repeatedly attempted to prevent the jury from hearing about a
potentially culpable third party.

¶16           Neither declining to contest evidence offered at trial nor
claiming personal non-involvement in the crimes are intrinsically
antagonistic, mutually exclusive methods of defense. See Cruz, 137 Ariz. at
545 (because both defendants could have been found innocent, as the core
of each defendant’s defense was his own non-involvement in robbery and
murder, the defenses were not mutually exclusive and did not require
severance).

¶17           As for Sanford’s third point of contention—that Johns
repeatedly objected to Sanford’s questions concerning a third party and that
this suggested to the jury defense counsel was “doing something improper
or inappropriate”—it is first worth noting that Johns did not always object
to these questions and that the objections he did make were not always
sustained. In other words, Johns was not actually successful in preventing
the jury from hearing about a potentially culpable third party. Therefore,
neither the core of Johns’ theory of defense nor his defense tactics were
antagonistic to Sanford’s defense.




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                           STATE v. SANFORD
                           Decision of the Court

                              CONCLUSION

¶18            Sanford failed to show compelling prejudice against which
the trial court did not adequately protect. Therefore, the trial court did not
abuse its discretion in denying Sanford’s motions to sever his trial from that
of his co-defendant. Sanford’s convictions and sentences are affirmed.




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




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