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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 PATRICK AUMILLER, Appellant.
No. 1 CA-CR 14-0748
FILED 12-22-2015
Appeal from the Superior Court in Maricopa County
No. CR2013-441534-001
The Honorable Joseph C. Welty, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Craig W. Soland
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
STATE v. AUMILLER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.
H O W E, Judge:
¶1 Daniel Patrick Aumiller appeals his convictions and
sentences for second-degree murder and misconduct involving weapons.
He argues that the trial court erred in denying his motion to sever the two
offenses. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 One day, Aumiller told the victim over the phone to come to
his house where he would “kick [the victim’s] ass.” The victim responded
with the same threat. Ten minutes later, the victim, his girlfriend, and
another man drove to Aumiller’s house. When they arrived, the victim
knocked on the front door, yelling for Aumiller.
¶3 Because Aumiller did not respond, the victim began walking
towards the car with his hands in the air, explaining to the others that
Aumiller was not coming out. Aumiller yelled something from inside the
house, the victim turned around, and Aumiller shot the victim in the neck
through the front screen door. The victim died immediately.
¶4 Aumiller then hid the rifle in his bedroom closet and fled on
his bicycle. The police later spotted him riding his bicycle and arrested him.
1 In Aumiller’s opening brief, counsel does not present a coherent
narrative of the facts of the case that are relevant to the issue raised on
appeal, but merely transcribes in summary fashion each and every
witness’s testimony in the order that each witness was called to testify,
regardless whether the testimony is relevant. Such a brief-writing technique
is not helpful in resolving this or any other appeal and is strongly
discouraged. See Ariz. R. Crim. P. 31.13(c)(1)(iii) (providing that an
appellant’s brief shall include “[a] statement of facts relevant to the issues
presented for review, with appropriate references to the record. The statement
shall not contain evidentiary matter unless material to a proper consideration of
the issues presented. . . .”) (emphasis added).
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STATE v. AUMILLER
Decision of the Court
At the time of the shooting, Aumiller was prohibited from possessing
firearms because he was a convicted felon.
¶5 The State charged Aumiller with first-degree murder and
misconduct involving weapons. Before trial, Aumiller moved to sever the
counts pursuant to Arizona Rule of Criminal Procedure 13.4(a). Aumiller
argued that, absent severance, he would be denied a fair trial because the
State would necessarily introduce evidence showing that he was a
convicted felon at the time he shot the victim. The trial court denied the
motion, concluding that the murder and weapons charges arose out of the
same conduct and were connected together. After the jury was empaneled
and before opening statements, Aumiller unsuccessfully renewed his
severance request.
¶6 The State introduced evidence of two of Aumiller’s prior
felony convictions—sanitized so that the jurors would not be aware of the
offenses’ nature—and evidence that he did not seek restoration of his civil
rights. After the State rested, Aumiller again unsuccessfully renewed his
motion to sever. Aumiller testified that he shot the victim in self-defense
after retrieving the rifle from his bedroom. He admitted to possessing the
rifle several months before the shooting. Aumiller also admitted that he had
two prior felony convictions and that he was prohibited from possessing a
firearm at the time of the shooting. Before resting, Aumiller moved for a
mistrial based on the court’s denial of his severance motion. The court
denied the motion.
¶7 The jurors found Aumiller guilty of misconduct involving
weapons and the lesser-included offense of second-degree murder. The
trial court sentenced him to concurrent terms of 24 years’ imprisonment for
the murder conviction and 10 years’ imprisonment for the weapons
conviction. Aumiller timely appealed.
DISCUSSION
¶8 Aumiller argues that the trial court erred in denying his
motion to sever the charges, relying on State v. Burns, 237 Ariz. 1, 344 P.3d
303 (2015), a supreme court decision decided after the trial court sentenced
him. We review the trial court’s denial of a motion to sever for an abuse of
discretion and “reverse only if a defendant can show compelling prejudice
against which the trial court was unable to protect.” Id. at 13–14 ¶ 29, 344
P.3d at 315–16. Although the trial court erred by not granting Aumiller’s
motion to sever the murder and weapons charges, the error was harmless.
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STATE v. AUMILLER
Decision of the Court
¶9 The State may join charges if they are charged in separate
counts and are of the “same or similar character,” are “based on the same
conduct or are otherwise connected together in their commission,” or are
“alleged to have been part of a common scheme or plan.” Ariz. R. Crim. P.
13.3(a). But a trial court, either on its own initiative or by motion, must sever
joined charges if severance is “necessary to promote a fair determination of
guilt or innocence . . . of any offense.” Ariz. R. Crim. P. 13.4.
¶10 Here, Aumiller argues that the trial court should have severed
his murder and weapons charges. Our supreme court has addressed an
identical issue in State v. Burns and concluded that the trial court was
required to sever a weapons charge from kidnapping, sexual assault, and
murder charges. See Burns, 237 Ariz. at 14 ¶ 34, 344 P.3d at 316. The court
reasoned that trying the weapons charge with the other charges permitted
the jurors to hear, during the trial’s guilt phase, evidence of the defendant’s
prior felony convictions that would not have been otherwise been heard. Id.
at ¶¶ 34–35. The court also stated that “[b]ut for joinder of the [weapons]
charge, the evidence of Burns’ prior felony convictions would not have been
admissible during the guilt phase [because] Burns did not testify at trial,
and any attempt to introduce the convictions would have been
impermissible character evidence.” Id. at ¶ 35. However, our supreme court
concluded that the trial court’s error was harmless because (1) the evidence
of the defendant’s guilt was overwhelming; (2) the State did not emphasize
his convictions during closing argument, mentioning them only in the
context of the weapons charge; and (3) nothing in the record indicated that
the jurors considered the defendant’s convictions in contravention of the
guilt-phase jury instructions. Id. at 15 ¶ 38, 344 P.3d at 317.
¶11 Pursuant to Burns, the trial court here abused its discretion in
denying Aumiller’s severance motion, but like in Burns, the error was
harmless.2 See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)
(providing that error is harmless if this Court can determine beyond a
reasonable doubt that it would not have affected the verdict). First,
overwhelming evidence established Aumiller’s guilt. The record shows that
he admitted to shooting the victim and fleeing the scene without first calling
police or rendering aid, thereby undercutting his claim of self-defense. Most
2 The State unpersuasively attempts to distinguish Burns because
Aumiller testified while Burns did not. The propriety of a trial court’s denial
of a severance motion is determined “based on the showing at the time the
motion is made and not what ultimately transpires at the trial.” State v. Dale,
113 Ariz. 212, 215, 550 P.2d 83, 86 (1976). The record shows that Aumiller
had not yet testified when the court denied his pre-trial motion to sever.
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STATE v. AUMILLER
Decision of the Court
significantly, Aumiller admitted that he was a convicted felon and a
prohibited possessor. Second, the State did not mention Aumiller’s prior
convictions during opening statements and only referred to them once
during closing argument in the context of the weapons charge.
¶12 Third, the trial court instructed the jurors (1) to consider the
counts separately with respect to whether the State proved each beyond a
reasonable doubt and (2) to not consider Aumiller’s prior felony convictions
as evidence of guilt relating to the murder charge. See State v. Prince, 204
Ariz. 156, 160 ¶ 17, 61 P.3d 450, 454 (2003), supplemented by 206 Ariz. 24, 75
P.3d 114 (2003) (finding no prejudice resulting from denial of severance
motion where jury is instructed to consider each offense separately and
advised that each must be proven beyond a reasonable doubt); Burns, 237
Ariz. at 14–15 ¶ 37, 344 P.3d at 316–17 (finding similar instruction alone
insufficient to cure prejudice resulting from erroneously joined weapons
charge, but sufficient to cure prejudice when combined with overwhelming
evidence of guilt, the State’s arguments, and nothing in the record
indicating that jurors considered the convictions during the guilt phase).
We presume the jurors followed these instructions, and nothing in the
record indicates otherwise. State v. Newell, 212 Ariz. 389, 403 ¶ 68, 132 P.3d
833, 847 (2006). Finally, nothing in the record shows that the jurors
otherwise improperly considered Aumiller’s prior felony convictions to
reach its verdict on the murder charge. See Burns, 237 Ariz. at 15 ¶ 38, 344
P.3d at 317.
¶13 Aumiller also argues that he was entitled to severance based
on the purported lack of cross-admissibility of evidence supporting the two
offenses. A defendant is entitled to severance as a matter of right if Rule
13.3(a)(1) is the only basis for a joint trial, unless the evidence of the other
offenses would be admissible were the offenses to be tried separately. Ariz.
R. Crim. P. 13.4(b). But because Rule 13.3(a)(2) was the basis for joining the
charges here, we reject Aumiller’s argument. Consequently, the record
shows that the trial court’s failure to sever the weapon charge did not affect
the jurors’ verdicts or sentences. Accordingly, although the trial court erred
in denying Aumiller’s motion to sever, the error was harmless.
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STATE v. AUMILLER
Decision of the Court
CONCLUSION
¶14 For the foregoing reasons, we affirm.
:ama
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