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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TIMOTHY MARVIN WARREN, Appellant. 

No. 1 CA-CR 20-0242 

Appeal from the Superior Court in Maricopa County

No. CR2019-114671-001 

The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Alice M. Jones

Counsel for Appellee 

Brown & Little, P.L.C., Chandler

By Matthew O. Brown

Counsel for Appellant

FILED 7-8-2021
STATE v. WARREN

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge David B. Gass delivered the decision of the Court, in which 

Judge Michael J. Brown and Judge David D. Weinzweig joined.

G A S S, Judge:

¶1 Timothy Marvin Warren appeals his conviction for 

aggravated robbery. Because any potential error was harmless, we affirm 

his conviction.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court reviews the facts in the light most favorable to 

sustaining the jury’s verdict, resolving all reasonable inferences against 

Warren. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).

¶3 On April 2, 2019, the victim received a text message from a 

phone number he did not recognize, but he believed it was someone he 

knew. He agreed to meet the person at an apartment complex to give the 

person “wax”—a form of cannabis with a high THC content. The person 

turned out to be R.W., Warren’s cousin. The victim arrived at the complex, 

parked his car, and texted R.W. he was there. Soon after, R.W. approached 

and entered the victim’s car. R.W. grabbed his gun, aimed it at the victim 

and demanded “everything” he had. The victim complied, handing his 

backpack to R.W., which contained cash, marijuana, and wax. R.W. left the 

victim’s vehicle and returned to the passenger side of a nearby SUV driven 

by Warren. Warren drove off. The victim followed and called the police.

During the ensuing police chase, a tire on the SUV blew out and Warren 

and R.W. fled the vehicle. The police later arrested them. The State indicted 

Warren on one count of armed robbery and one count of aggravated 

robbery.

¶4 During jury selection, the superior court discussed the burden 

of proof and the presumption of innocence, adding “the defendant is not 

required to prove innocence or produce any evidence.” The superior court 

gave preliminary instructions, including the burden of proof, the 

presumption of innocence, and the defendant’s right not to testify.
STATE v. WARREN

Decision of the Court

3

¶5 The State rested at the end of the fifth day of trial. In releasing 

the jurors for the evening, the superior court reminded them of the 

admonition:

So please remember the admonition. Please remember you’ve only 

heard one side of the case at this point in time. Do not start thinking 

about how you’re going to decide the case. Please keep an open mind 

until you hear all the rest of the evidence and all of the closing 

arguments.

¶6 Warren’s counsel immediately moved for mistrial, arguing 

the superior court incorrectly implied Warren had an obligation to present 

evidence. The superior court denied the motion for mistrial, but promised 

to correct and clarify the statement for the jurors the next day.

¶7 The next day, the superior court offered a curative instruction. 

At Warren’s request, the superior court did not read the curative instruction 

to the jury. The defense rested without presenting any evidence. The final 

jury instructions described the presumption of innocence and the burden 

of proof, adding a defendant need not testify or present evidence.

¶8 The jury acquitted Warren of armed robbery but found him 

guilty of aggravated robbery. Warren timely appealed. This court has 

jurisdiction under article VI, section 9, of the Arizona Constitution, and 

A.R.S. §§ 13-4031 and 13-4033.A.1.

ANALYSIS

¶9 Warren first argues the superior court’s statement telling the 

jury it had “only heard one side of the case at this point” and to “keep an 

open mind until you hear all of the rest of the evidence” was an improper 

instruction and misled the jury because it failed to “adequately reflect the 

law.” According to Warren, the superior court then compounded the error

by not providing a special, corrective instruction. Second, Warren argues 

the statement infringed his right to remain silent. See U.S. Const. amend. V; 

Ariz. Const. art. II, § 10. The State recasts Warren’s arguments as whether 

the superior court abused its discretion in denying his motion for mistrial.

We analyze the arguments as Warren framed them.

¶10 This court “review[s] a decision to give or refuse a requested 

jury instruction for an abuse of discretion,” but reviews de novo whether the 

jury instruction accurately reflects the law. Leon v. Marner, 244 Ariz. 465, 

469, ¶ 11 (App. 2018). Considering the instructions as a whole, this court

decides whether “the jury was properly guided in arriving at a correct
STATE v. WARREN

Decision of the Court

4

decision.” Pima Cnty. v. Gonzalez, 193 Ariz. 18, 20, ¶ 7 (App. 1998). This court 

also reviews de novo questions of constitutional law. Gallardo v. State, 236 

Ariz. 84, 87, ¶ 8 (2014). 

¶11 This court reviews for harmless error because Warren moved

for mistrial. See Leon, 244 Ariz. at 469, ¶ 12 (“With limited exceptions,

erroneous jury instructions are subject to either harmless or fundamental

error review.”); State v. VanWinkle, 229 Ariz. 233, 237, ¶ 16 (App. 2011) 

(applying harmless error analysis to improper comment on defendant’s 

constitutional right to silence). “Error, be it constitutional or otherwise, is 

harmless if we can say, beyond a reasonable doubt, that the error did not 

contribute to or affect the verdict.” State v. Bible, 175 Ariz. 549, 588 (1993). 

The State carries the burden to establish any error was harmless. State v. 

Anthony, 218 Ariz. 439, 446, ¶ 39 (2008).

¶12 We express no opinion about whether the superior court 

erred because any error was harmless. After making the statement, the 

superior court drafted a proposed curative instruction, which Warren

rejected. Both Warren and the superior court agreed the proposed 

instruction would needlessly duplicate the final jury instructions. The

superior court is in the best position to determine the appropriate remedy 

for a trial error. State v. Herrera, 203 Ariz. 131, 135, ¶ 6 (App. 2002). We 

recognize some states have held rejecting a curative instruction constitutes 

a waiver of that issue on appeal. See, e.g., Dobbins v. State, 844 S.E.2d 814, 

818 (Ga. 2020); Pennsylvania v. Ramos, 231 A.3d 955, 958–59 (Pa. Super. Ct.

2020). In Arizona, declining a proposed curative instruction weighs against

abuse of discretion. See Herrera, 203 Ariz. at 134–35, ¶¶ 5–6 (superior court 

did not abuse its discretion by denying a mistrial based in part on 

defendant’s declination of a curative instruction).

¶13 Regardless, “it is not error for the [superior] court to refuse to 

give a requested instruction that is covered adequately by the given 

instructions.” Haynes v. Syntek Fin. Corp., 184 Ariz. 332, 341 (App. 1995). The

superior court properly instructed the jury before and after it made the 

statement. The preliminary instructions correctly informed the selected 

jurors of the presumption of innocence, the burden of proof, and Warren’s 

right not to testify. The final jury instructions, given the day after the 

putative error, repeated those same principles. This court presumes jurors 

follow the instructions they are given. State v. LeBlanc, 186 Ariz. 437, 439

(1996). The final jury instructions sufficiently rendered any error harmless

by giving the jury proper guidance.
STATE v. WARREN

Decision of the Court

5

¶14 The verdict also weighs against error. The jury convicted

Warren of aggravated robbery but acquitted him of armed robbery, 

demonstrating it considered the evidence on each charge. See State v. Stuard, 

176 Ariz. 589, 600 (1993) (acquittal of relevant charges weighs against 

reversible error). A juror who improperly concluded Warren bore a burden 

to provide evidence would not have acquitted Warren on any of the 

charges. The superior court’s reminder of the admonition did not affect the 

verdict. See State v. Jones, 203 Ariz. 1, 10, ¶ 33 (2002) (error was harmless 

because the jury made reasoned decisions and acquitted on one of four

counts); cf. State v. Barger, 167 Ariz. 563, 567 (App. 1990) (harmless error to 

exclude a statement when the jury acquitted defendant of the charge to 

which statement would have been relevant); State v. Davis, 117 Ariz. 5, 7–8

(App. 1977) (not prejudicial error when improperly communicated

instruction went to the charge of which defendant was acquitted).

CONCLUSION

¶15 We affirm Warren’s conviction.