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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

2

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).
STATE v. KOLEY

Decision of the Court

3

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’ 
STATE v. KOLEY

Decision of the Court

4

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 
STATE v. KOLEY

Decision of the Court

5

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 
STATE v. KOLEY

Decision of the Court

6

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. 
STATE v. KOLEY

Decision of the Court

7

¶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).
STATE v. KOLEY

Decision of the Court

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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.