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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALAN TROY NIMER, Appellant.

No. 1 CA-CR 19-0135

Appeal from the Superior Court in Maricopa County

No. CR2018-105213-001

The Honorable William R. Wingard, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael O’Toole

Counsel for Appellee

Brain & Lauritano PLC, Glendale

By Sheri M. Lauritano

Counsel for Appellant

FILED 8-20-2020
STATE v. NIMER

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.

C A T T A N I, Judge:

¶1 Alan Troy Nimer appeals his convictions and sentences for

two counts of aggravated assault. Nimer’s counsel filed a brief in 

accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 

104 Ariz. 297 (1969), certifying that, after a diligent search of the record, she

found no arguable question of law that was not frivolous, and asking this 

court to search the record for reversible error. See State v. Clark, 196 Ariz. 

530, 537, ¶ 30 (App. 1999). Nimer filed a supplemental brief, in which he 

contends that the superior court erred by playing only a portion of an audio 

recording to the jury and that he was entitled to a duress jury instruction.

After reviewing the record and considering the issues raised in Nimer’s 

supplemental brief, we affirm Nimer’s convictions and sentences.

FACTS AND PROCEDURAL BACKGROUND

¶2 One day in January 2018, Nimer experienced chest pain and 

had trouble breathing after using cocaine and methamphetamine. He 

called 911, reporting he was having a heart attack.

¶3 When firefighter-paramedics arrived, Nimer seemed agitated 

and began recording them on his cell phone. He started yelling expletives 

and “bossing [the firefighters] around.” Because Nimer was hostile and 

uncooperative, the supervising firefighter determined that it was no longer 

safe for them to continue rendering aid. As the firefighters were preparing 

to leave, Nimer shoved firefighter-engineer, N.L., and swung at another 

firefighter, J.B.

¶4 The firefighters then restrained Nimer, and he eventually 

calmed down. The firefighters continued to render aid, and Nimer was 

transported to the hospital. Nimer’s cell phone audio recorded the entire 

encounter with the firefighters.

¶5 Nimer was subsequently charged with one count of 

aggravated assault as to N.L. and another count of aggravated assault as to 
STATE v. NIMER

Decision of the Court

3

J.B. After a five-day trial, a jury found him guilty as charged, and he was

sentenced to three years’ imprisonment, with 321 days of presentence 

incarceration credit. Nimer appealed, and although his initial appeal was 

untimely, the superior court later granted his request for leave to file a 

delayed appeal.

DISCUSSION

I. Supplemental Brief.

¶6 Nimer contends that the superior court erred by only playing 

a brief excerpt of his audio recording for the jury. Although he asserts that 

the first twenty-one minutes of the over three-hour recording exonerates 

him, the record he has submitted on appeal only contains the first two 

minutes of the recording; it does not contain the portion he claims is 

exonerating. Nimer could have filed a designation with the superior court 

to include the full recording within thirty days after the filing of his notice 

of appeal, see Ariz. R. Crim. P. 31.8(a)(2), but he did not do so. Accordingly, 

Nimer has not established that the full recording was exculpatory or that

the court erred by failing to play it in its entirety for the jury.

¶7 Nimer also contends that the superior court erred by denying 

his request for a duress jury instruction. A party is entitled to a particular 

jury instruction if it “is reasonably and clearly supported by the evidence.” 

State v. Walters, 155 Ariz. 548, 553 (App. 1987). We review the superior 

court’s refusal to give a requested jury instruction for an abuse of discretion. 

State v. Moody, 208 Ariz. 424, 467, ¶ 197 (2004). Failure to give a requested 

instruction “is not reversible error unless it is prejudicial to the rights of a 

defendant and such prejudice appears on the record.” State v. Barr, 183 

Ariz. 434, 442 (App. 1995).

¶8 The duress statute provides that otherwise culpable conduct 

is justified “if a reasonable person would believe that he was compelled to 

engage in the proscribed conduct by the threat or use of immediate physical 

force against his person . . . which resulted or could result in serious 

physical injury which a reasonable person in the situation would not have 

resisted.” A.R.S. § 13-412(A). That defense, however, “is unavailable if the 

person intentionally, knowingly or recklessly placed himself in a situation 

in which it was probable that he would be subjected to duress.” A.R.S. § 

13-412(B).

¶9 Here, Nimer placed himself in the situation in which it was 

probable that he would be subjected to duress after he yelled expletives at 

the firefighters and shoved one of them as they were preparing to leave.
STATE v. NIMER

Decision of the Court

4

And, in any event, Nimer testified that he did not touch or hit any of the 

firefighters. Accordingly, a duress instruction was neither supported by 

the evidence nor consistent with his defense. Accordingly, the superior 

court did not abuse its discretion by denying his request for a duress 

instruction.

II. Fundamental Error Review.

¶10 We have read and considered counsel’s brief and have 

reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find 

none.

¶11 Nimer was present and represented by counsel at all stages of 

the proceedings against him. The record reflects that the superior court 

afforded Nimer all his constitutional and statutory rights, and that the 

proceedings were conducted in accordance with the Arizona Rules of 

Criminal Procedure. The court conducted appropriate pretrial hearings, 

and the evidence presented at trial and summarized above was sufficient 

to support the jury’s verdicts. Nimer’s sentences fall within the range 

prescribed by law, with proper credit given for presentence incarceration.

CONCLUSION

¶12 Nimer’s convictions and sentences are affirmed. After the 

filing of this decision, defense counsel’s obligations pertaining to Nimer’s 

representation in this appeal will end after informing Nimer of the outcome 

of this appeal and his future options, unless counsel’s review reveals an 

issue appropriate for submission to the Arizona Supreme Court by petition 

for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s 

own motion, Nimer has 30 days from the date of this decision to proceed, if

he desires, with a pro se motion for reconsideration or petition for review.