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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

VINCENT QUIMAYOUSIE, Appellant. 

No. 1 CA-CR 14-0749 

 

Appeal from the Superior Court in Maricopa County

No. CR2012-148862-001 

The Honorable Sam J. Myers, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Craig W. Soland 

Counsel for Appellee 

Maricopa County Public Defender’s Office, Phoenix

By Terry J. Reid

Counsel for Appellant
STATE v. QUIMAYOUSIE

Decision of the Court

MEMORANDUM DECISION

Judge Patricia K. Norris delivered the decision of the Court, in which 

Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.

N O R R I S, Judge:

¶1 Vincent Quimayousie appeals his convictions and sentences

for first degree felony murder, attempted armed robbery, and misconduct 

involving weapons, arguing the superior court should have prohibited

three witnesses from identifying him at trial; instructed the jury on their

identifications; severed the misconduct charge from the other charges; 

granted his Batson challenge; declared a mistrial because of juror 

misconduct; barred the State from dismissing the first degree murder 

charge based on premeditation; and instructed the jury on certain lesserincluded offenses. We reject these arguments and affirm Quimayousie’s 

convictions and sentences. 

FACTS AND PROCEDURAL BACKGROUND1

¶2 On the evening of September 13, 2012, Quimayousie 

approached the victim, the victim’s two younger sisters (including witness

C.M., see infra ¶ 5), and two younger cousins as they walked through a city 

park; he demanded their money at gunpoint. For no apparent reason, 

Quimayousie then fired his gun at the victim, striking him in the chest and 

killing him. A jury found Quimayousie guilty on the charges specified 

above. 

DISCUSSION

I. Witness Identifications

¶3 Quimayousie first argues the superior court abused its 

discretion when it allowed three witnesses—M.P., C.M., and C.G.—to 

identify Quimayousie at trial. State v. Moore, 222 Ariz. 1, 7, ¶ 17, 213 P.3d 

1“We construe the evidence in the light most favorable to 

sustaining the verdict, and resolve all reasonable inferences against the 

defendant.” State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998)

(citation omitted).

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150, 156 (2009). Even if we assume the circumstances surrounding the 

pretrial identification were inherently suggestive (contrary to the superior 

court’s finding), the circumstances were not, however, otherwise 

unreliable. See infra ¶¶ 9-10. Thus, we reject this argument. State v. 

Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969) (if defendant 

challenges proposed in-court identification, state must prove the 

circumstances surrounding any prior identification were not unduly 

suggestive); and see State v. Rojo-Valenzeula, 237 Ariz. 448, 450, ¶ 7 n.1, 352 

P.3d 917, 919 n.1 (2015) (although Dessureault and other cases used the term 

“unduly suggestive,” supreme court used the term “inherently suggestive”

for clarity and consistency; “[a]n inherently suggestive identification 

procedure triggers the need for a reliability analysis to determine whether 

the identification is admissible.”). 

A. Factual Background2

¶4 M.P. saw Quimayousie in the park before he shot the victim. 

It was “a little bit dark” when Quimayousie passed “very close” by her with 

a gun in his hand as she sat on a park bench with her daughter playing

nearby. She became frightened and “scanned [Quimayousie] completely,” 

looked at his face, which was uncovered, and noted his features and 

clothing. She observed that Quimayousie appeared to be a thin Hispanic 

male, 5’ 6” to 5’ 8”, who wore a dark, black or navy blue hat.3 After he 

passed, M.P. watched Quimayousie interact with another person in the 

park and then walk out of sight. Shortly after, she heard gunshots. 

¶5 C.M., then 11 years old, saw Quimayousie during the 

shooting itself. As noted, she was the victim’s sister and was with the 

victim, their sister, and two cousins in the park. C.M. watched 

Quimayousie approach the group and noted he wore a black hat, a black 

shirt, and jeans. She could see Quimayousie’s eyes even though he wore a 

bandana around his mouth and nose. She also noted that Quimayousie

carried a revolver. It was “fairly dark,” but she could clearly see 

Quimayousie. Quimayousie demanded money from the group and shot 

the victim as C.M. stood approximately a yard and a half away. She then 

2We review the ruling on a pretrial identification based solely 

on the evidence admitted at the evidentiary hearing. Moore, 222 Ariz. at 7, 

¶ 17, 213 P.3d at 156. 

3Although the witnesses told police he appeared Hispanic, 

Quimayousie is Native American. 

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STATE v. QUIMAYOUSIE

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watched Quimayousie as he made his way through the family members 

and jogged away. 

¶6 C.G. saw Quimayousie as he fled from the park and 

attempted to hide from police. She was on the outskirts of the park with 

her brother and another person, riding bicycles, when they heard shots. 

C.G.’s brother told them to “Go. Go.” because he saw who he believed was

the shooter coming towards them, but the group continued to ride

nonchalantly because they did not want Quimayousie to notice them or 

come over to them. Although Quimayousie was three to four houses away 

from her, C.G. watched him run to a house that was only “a couple” of 

houses from her own house. She watched Quimayousie pound on the door 

of the house and try to enter. She then went to her own house and 

continued to watch Quimayousie from the curb. Even though it was dark, 

security lights on the other house provided illumination. Quimayousie 

eventually “hunched down” and tried to hide. C.G. watched Quimayousie 

for what seemed to her like “forever,” but which she admitted could have 

been “minutes.” She described Quimayousie to police as a Hispanic male, 

approximately 5’ 5” tall, wearing a black shirt, black pants, and a black cap. 

¶7 Police presented two people to each witness in separate oneon-one identification procedures about 30 to 40 minutes after the shooting. 

An officer gave each witness a form of the one-on-one identification 

admonition and then had each witness sit in a police vehicle while the 

police presented each subject in the vehicle’s spotlight. 

¶8 M.P. was “80% sure” Quimayousie was the person she had 

seen. She said it was only 80% because he was no longer wearing a hat. 

C.M. was “absolutely positive” it was the same person even though 

Quimayousie was no longer wearing his bandana. C.G. was “sure” he was 

the person she had seen. All three witnesses said the other subject police

presented was not the man they had seen. 

B. Discussion

¶9 One-person “show-up” identifications, such as those used 

here, are inherently suggestive. State v. Williams, 144 Ariz. 433, 439, 698 P.2d 

678, 684 (1985). Even if a superior court finds the circumstances 

surrounding a prior identification inherently suggestive, however, the

court may still admit the prior identification if it determines the 

identification was otherwise reliable under the totality of the circumstances. 

State v. Osorio, 187 Ariz. 579, 581, 931 P.2d 1089, 1091 (App. 1996). Factors 

the court must consider as part of the totality include: (1) the witness’s 

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STATE v. QUIMAYOUSIE

Decision of the Court

opportunity to view the defendant at the time of the offense; (2) the 

witness’s degree of attention; (3) the accuracy of any prior description of 

the defendant by the witness; (4) the witness’s level of certainty at the 

identification; and (5) the length of time between the crime and the 

identification. Id. 

¶10 Applying these factors, the superior court also found the

identifications were reliable. Each witness had ample opportunity to view 

Quimayousie, and each explained why she had focused her attention on 

him. See State v. Alvarez, 145 Ariz. 370, 372, 701 P.2d 1178, 1180 (1985) (when

witness rivets her attention upon a person, reliability of a subsequent 

identification of that person is enhanced). All three witnesses provided 

similar and ultimately accurate descriptions of Quimayousie to police and

expressed a high level of certainty in their identifications of Quimayousie. 

Finally, all three identified Quimayousie within 30 to 40 minutes after the 

shooting when the events were still fresh in their minds. For these reasons, 

the superior court did not abuse its discretion or commit legal error in 

allowing the three witnesses to identify Quimayousie at trial. See Moore, 

222 Ariz. at 7, ¶ 17, 213 P.3d at 156. 

II. Identification Instruction

¶11 After the court found that the circumstances surrounding the 

identifications were not “unduly suggestive” and the identifications were 

reliable, it allowed the State, over Quimayousie’s objection, to withdraw its 

request for the “standard” identification instruction, Revised Arizona Jury 

Instruction 39. That instruction read as follows: 

The State must prove beyond a reasonable 

doubt that the in-court identification of the 

defendant at this trial is reliable. In determining 

whether this in-court identification is reliable 

you may consider such things as:

1. the witness’ opportunity to view at the time 

of the crime;

2. the witness’ degree of attention at the time of 

the crime;

3. the accuracy of any descriptions the witness 

made prior to the pretrial identification;

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STATE v. QUIMAYOUSIE

Decision of the Court

4. the witness’ level of certainty at the time of 

the pretrial identification;

5. the time between the crime and the pretrial 

identification;

6. any other factor that affects the reliability of 

the identification.

If you determine that the in-court identification 

of the defendant at this trial is not reliable, then 

you must not consider that identification.

Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 39 (4th ed. 2015). 

¶12 On appeal, Quimayousie argues the superior court abused its 

discretion in allowing the State to withdraw its request for this instruction. 

State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). We reject this 

argument.

¶13 Consistent with the “use note” for this instruction and our 

prior case law, a court must give this instruction when it has concluded—

using current terminology—the pretrial identification procedures were 

“inherently suggestive.” E.g. State v. Osorio, 187 Ariz. 579, 582, 931 P.2d 

1089, 1092 (App. 1996); see infra ¶ 3. And, more recently, this court has 

recognized a court should give a cautionary instruction to the jury alerting 

it to the dangers of identification evidence when a defendant has presented 

evidence that a pretrial identification was made under suggestive 

circumstances that call into question the reliability of the trial identification 

testimony. State v. Nottingham, 231 Ariz. 21, 26, ¶¶ 12-14, 289 P.3d 949, 954 

(App. 2012). 

¶14 Here, as noted, the superior court did not find the 

circumstances surrounding the pretrial identifications “unduly”

suggestive. And, most importantly, none of these circumstances brought 

the reliability of the witnesses’ trial identifications into question. See infra ¶ 

10. Under these circumstances, the superior court did not abuse its 

discretion in allowing the State to withdraw its proposed identification 

instruction. 

¶15 Nevertheless, as we recognized in Nottingham, eyewitness 

testimony presents serious and significant risks. Id. at 27, ¶ 15, 289 P.3d at 

955 (discussing authorities). Given these dangers, and the importance of 

reliability when such evidence is presented, we encourage trial courts to 

6 
STATE v. QUIMAYOUSIE

Decision of the Court

instruct the jury on the factors it should consider in determining whether to 

consider an in-court identification reliable. Such an instruction will provide 

the jury with a meaningful framework within which to evaluate the 

reliability of a pretrial identification. 

III. Denial of Severance 

¶16 Quimayousie next argues the superior court should have 

severed the misconduct charge from the other charges. Under the 

circumstances presented here the superior court did not abuse its discretion 

in refusing to sever the charges.4 State v. Garland, 191 Ariz. 213, 216, ¶9, 953 

P.2d 1266, 1269 (App. 1998) (appellate court reviews ruling on severance for 

abuse of discretion). 

A. Factual Background

¶17 The superior court found the State had properly joined the

counts because the offenses were based on the same conduct. See Ariz. R. 

Crim. P. 13.3(a)(2) (joinder). The superior court further ruled joinder would 

not be unduly prejudicial, stated it would “sanitize” the evidence of 

Quimayousie’s prior juvenile adjudications, and instructed the jury to limit

its consideration of the evidence. 

¶18 The jury heard limited evidence of Quimayousie’s prior 

adjudications. One witness testified Quimayousie had “prior adjudications 

for felony offenses” and that his right to possess a weapon had not been 

restored. The rest of the evidence concerning the prior adjudications came 

through a stipulation. Before the superior court read the stipulation to the 

jury, it instructed it that it would hear evidence that Quimayousie had been 

adjudicated delinquent for a felony and that the evidence was relevant only 

to the count of misconduct involving weapons. The superior court further 

instructed the jury, “You are not to consider this information for any other 

purpose.” That stipulation informed the jury that Quimayousie had twice

been adjudicated for an unidentified felony and identified the two juvenile 

cause numbers, the dates of the two offenses, and the dates of the 

adjudications. In the final instructions, the superior court again instructed 

the jury that the prior adjudication evidence was relevant only to the count 

of misconduct involving weapons, and it could not consider the evidence 

4Quimayousie was a prohibited possessor because of two 

prior juvenile felony adjudications. See Ariz. Rev. Stat. (“A.R.S.”) § 13-

3102(A)(4) (2012) (misconduct involving weapons based on prohibited 

possession). 

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STATE v. QUIMAYOUSIE

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for any other purpose and had to decide each count separately based on the 

evidence and law applicable to that count, uninfluenced by its decision on 

any other count. 

B. Discussion

1. Law on Severance at the Time of Trial

¶19 “Severance of joined offenses is required as a matter of right 

if the offenses are joined only by virtue of their same or similar nature; 

otherwise they may be severed at the trial court’s discretion.” Garland, 191 

Ariz. at 216, ¶ 8, 953 P.2d at 1269; Ariz. R. Crim. P. 13.4(b). Severance is also

required, however, 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). 

¶20 Under the circumstances and the governing law then in 

existence, the superior court did not abuse its discretion in refusing to sever 

the misconduct charge from the other charges. The State properly joined 

the offenses pursuant to Rule 13.3(a)(2) and severance was not otherwise 

required to promote a fair determination of guilt or innocence. Further, our 

supreme court has instructed us that we must presume a jury follows its 

instructions. See State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 

(2006). 

2. State v. Burns

¶21 Nevertheless, Quimayousie relies on State v. Burns, 237 Ariz. 

1, 344 P.3d 303 (2015), to support his argument that severance was required

even though the supreme court had not yet issued this opinion at the time 

of his trial. In Burns, our supreme court found the superior court had 

abused its discretion when it failed to sever a count of misconduct involving 

weapons from counts of murder, kidnapping, and sexual assault because 

evidence of the defendant’s prior felony convictions would not otherwise 

have been admissible in the guilt phase of the case. Id. at 14-15, ¶¶ 34-37, 

344 P.3d at 316-17. The court further found, however, that because of the 

overwhelming evidence of guilt, the error was harmless. Id. at ¶ 38. 

¶22 Here, as in Burns, the evidence of Quimayousie’s guilt was 

overwhelming. As explained above, see supra ¶¶ 4-6, witnesses saw

Quimayousie as he approached the park, saw him shoot the victim, and 

8 
STATE v. QUIMAYOUSIE

Decision of the Court

saw him run away.5 As he attempted to hide, Quimayousie sent text 

messages from his phone to two friends and sought their help. He told the 

first friend, “Come through [friend] I just. Bucked on sum niggazzzzs 

[sic].”6 That friend responded he was on his way and asked Quimayousie’s 

location. Quimayousie texted a second friend and said, “I just bucked on 

sum niggaz come through!!!!!!” Quimayousie texted his location to the first 

friend several times, who again responded that he was on his way. That 

friend also told Quimayousie to wash his hands. Less than two minutes 

later, Quimayousie texted, “The Patty wagon is already. Here come 

quick!!!!!! [sic]” In a subsequent text, Quimayousie told the first friend he 

was wiping his hands. 

¶23 When police arrived at the house where Quimayousie was 

hiding, several officers saw Quimayousie crouch behind a car as they 

approached him. They then heard the sound of a heavy metallic object hit 

the concrete under the car. That metal object turned out to be a handgun 

with Quimayousie’s thumbprint on it. All of the rounds in the cylinder had 

been fired and Quimayousie had additional ammunition in his pockets. 

Although an expert could not positively identify or exclude Quimayousie’s

gun as the weapon that fired the bullet that killed the victim, the expert 

testified Quimayousie’s gun had “likely” fired the bullet. Given all the 

evidence, the superior court’s refusal to sever the misconduct charge did 

not affect the jury’s verdicts. 

IV. Batson Challenge

¶24 Quimayousie, a Native American, next argues the superior

court should have granted his challenge to the State’s peremptory strike of 

Juror 37, the only Native American panel member, pursuant to Batson v. 

Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 89 L. Ed. 2d 69 (1986)

(prosecution may not strike a potential juror solely on account of the juror’s 

race). We will not reverse a superior court’s decision on a Batson challenge 

unless it is clearly erroneous. State v. Lynch, 238 Ariz. 84, 104, ¶ 67, 357 P.3d 

119, 139 (2015). We defer to a superior court’s findings regarding the State’s 

motives for the strike, but review the court’s application of the law de novo. 

Id. 

5The victim’s other sister did not participate in any pretrial 

identification procedures, but identified Quimayousie at trial and was 

“positive” he was the person who shot the victim. 

6The victim was African American. 

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STATE v. QUIMAYOUSIE

Decision of the Court

¶25 Here, the superior court’s rejection of Quimayousie’s Batson

challenge was not clearly erroneous. After Quimayousie established a 

prima facie case of racial discrimination, the State provided race-neutral 

explanations for the strike of Juror 37 that the superior court found credible 

and supported by the record. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 

1769, 1770-71, 131 L. Ed. 2d 834 (1995) (first, the opponent establishes a 

prima facie case; then, the proponent must come forward with a raceneutral explanation; finally, the trial court must decide if the opponent has 

proved purposeful racial discrimination). “Unless a discriminatory intent 

is inherent in the prosecutor’s explanation, the reason offered will be 

deemed race neutral.” Id. at 768, 115 S. Ct. at 1771. The State explained: 

One, she's one of the jurors that did not have 

children, which was an issue for us in regard to 

our selection of a jury in this case. 

In addition, she'd indicated that she testified 

against a supervisor within the tribe, and she 

seemed somewhat gratified or satisfied in the 

fact that she had taken this on, which caused us 

some concern about her ability to get along with 

other jurors. 

Of most concern was the fact that she did not 

initially share that she had a conviction but 

shared that a little bit later, and when she did 

share it you followed up with her about 

whether or not in light of that fact she could still 

be fair. She hesitated before she answered her 

question to you.7 

¶26 Given the age of the victim and others involved in the case, 

the State’s strategy of selecting jurors with children was facially valid. 

Newell, 212 Ariz. at 401, ¶¶ 53-54, 132 P.3d at 845 (prosecutor’s burden to 

7The State offered a fourth reason, arguing an Internet search 

revealed Juror 37 had once been and may still be a journalist, something she 

did not reveal at any point. Quimayousie admitted he also found such 

information, but argued she wrote her last article years earlier. There is, 

however, nothing in the record but counsels’ arguments to suggest Juror 37 

was ever a journalist. For this reason, the superior court declined to 

consider that factor in its determination, and we also decline to consider 

this factor.

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STATE v. QUIMAYOUSIE

Decision of the Court

give a race-neutral explanation for a strike is satisfied by a facially valid 

explanation). Further, the manner in which a prospective juror answers 

questions can also be a proper basis for a peremptory strike—here, Juror 

37’s perceived satisfaction with having testified against a tribe supervisor. 

State v. Hernandez, 170 Ariz. 301, 305, 823 P.2d 1309, 1313 (App. 1991). The 

superior court was in the best position to assess the State’s explanation on

how her response suggested she might not be able to get along with other

jurors. Newell, 212 Ariz. at 401, ¶ 54, 132 P.3d at 845 (on issues of credibility, 

“the trial court is in a better position to assess than is this Court”). Finally, 

although Quimayousie disagreed with the State’s assertion that Juror 37 

had been hesitant in affirming she could be fair despite her conviction, the 

superior court was in the best position to decide whether the juror had, in 

fact, hesitated as the State asserted. 

¶27 Quimayousie argues the State’s explanations were 

pretextual, however, because other jurors who were ultimately seated on 

the jury, Jurors 106, 119, 126, and 129, had criminal convictions. 

Quimayousie also notes Juror 126 also had no children. First, the State has 

a limited number of peremptory strikes and cannot strike everyone who 

does not fit the State’s mold of the ideal juror for a specific case. A party 

must sometimes accept a juror that is not ideal to preserve a strike for a 

juror who is even less ideal. It is unlikely the jury ultimately selected will 

be completely uniform in characteristics a party considers favorable and/or 

unfavorable. Second, the State did not strike Juror 37 because she had a 

criminal conviction. The State struck her because it believed she hesitated 

when the court asked her if she could be fair and impartial in light of her 

treatment during her prosecution. The State also believed Juror 37 was not 

as forthcoming about her conviction as she could have been. Under these 

circumstances, the presence of Jurors 106, 119, 126, and 129 on the jury does 

not establish purposeful racial discrimination. 

¶28 Finally, Quimayousie argues the State should have 

questioned Juror 37 further if it had genuine concerns regarding her. The 

State’s decision not to ask Juror 37 more questions does not establish that 

its strike was pretextual. Lynch, 238 Ariz. at 104, ¶ 70, 357 P.3d at 139. 

V. Juror Misconduct

¶29 Quimayousie next argues the superior court abused its 

discretion when it denied a mistrial after Juror 2 engaged in misconduct by 

researching the time of sunset on the date of the murder and the meaning 

of the term “bucked” as used in Quimayousie’s text messages. State v. Hall, 

204 Ariz. 442, 447, ¶ 16, 65 P.3d 90, 95 (2003). 

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STATE v. QUIMAYOUSIE

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¶30 Juror misconduct requires a new trial only if the defendant 

proves actual prejudice or “if prejudice may be fairly presumed from the 

facts.” State v. Nelson, 229 Ariz. 180, 184, ¶ 12, 273 P.3d 632, 636 (2012)

(quoting State v. Davolt, 207 Ariz. 191, 208, ¶ 58, 84 P.3d 456, 473 (2004)). In 

the context of extrinsic information, as is the case here, we will not presume 

prejudice without proof the jury received the extrinsic information and 

considered that information in its deliberations. Id. We find no abuse of 

discretion because Quimayousie has failed to prove actual prejudice and 

we cannot fairly presume prejudice from the facts. 

¶31 After learning of the misconduct, the superior court spoke 

with each juror to learn the extent of his or her exposure to the extrinsic 

information. Jurors 1, 5, 8, 9, 11, and 14 were not aware that anyone had 

consulted outside sources. Juror 3 heard Juror 2 admit in the jury room that 

she went online to look up the time of sunset, but did not hear Juror 2 

mention a time. Juror 3 heard unidentified jurors tell Juror 2 that she should 

not have done that and the discussion stopped.8 Juror 6 was also in the jury 

room when he heard an unidentified person say he or she had found out 

the time of sunset, but the person never actually said the time other than to 

suggest it was earlier than what another juror suggested. Juror 6 assured 

the court he could disregard all of this. 

¶32 Jurors 4 and 15 were at lunch with Juror 2 when Juror 2 told 

them she looked up something on the Internet. Jurors 4 and 15 immediately 

stopped Juror 2, told Juror 2 they did not want to hear any more, and got 

up and left. It is not clear whether Juror 7 was with the group or simply 

nearby during lunch, but Juror 7 heard someone mention doing research, 

saw Jurors 4 and 15 leave and heard them admonish Juror 2. Juror 2 then 

told Juror 7 that she had looked up the word “bucked” and told her the 

definition(s), and Juror 7 also immediately admonished Juror 2 and left. 

Juror 7 did not recall the definition(s) of “bucked” Juror 2 told her. Juror 7

assured the court she could base her decision solely on the evidence 

admitted at trial. Juror 2 did not tell anyone other than Juror 7 that she

looked up the definition of “bucked” and never told anyone else what she 

thought it meant. 

¶33 Based on the jurors’ responses, the superior court denied 

Quimayousie’s motion for mistrial, excused Juror 2, reconstituted the jury 

with an alternate juror, and ordered the jurors to begin deliberations anew. 

8While Juror 3 thought Juror 1 was present when this 

occurred, Juror 3 admitted she did not know which jurors actually heard 

the discussion. Again, Juror 1 denied he heard anything. 

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STATE v. QUIMAYOUSIE

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The court explained to the jury that “everything that happened with the 

previous jury is wiped out and you’re gonna start anew as a brand new 

group of 12 starting from scratch.” The court then formally instructed the 

jury: 

Members of the jury, I have replaced a 

deliberating juror with an alternate juror. The 

alternate juror will now be a deliberating juror. 

Please do not speculate or guess about the 

reasons for this change. 

You remain under the admonitions previously 

given to you. You are also required to follow 

the final jury instructions previously provided 

and read to you. 

You are to start your deliberations anew, 

starting with . . . selection of a jury foreperson. 

You are to begin deliberating with full and 

detailed discussion about all the issues as 

though the previous deliberations had not taken 

place. Any preliminary or final decisions you 

may have made about any aspect of the case 

must be set aside and discussed anew. You 

shall not consider any part of your prior 

deliberations and/or discussions, including any 

prior votes or any decisions you may have 

previously made about the case.

The reconstituted jury began its deliberations shortly before noon and 

returned its verdicts shortly after noon the next day. The record contains 

no evidence that Juror 2’s misconduct actually prejudiced Quimayousie. 

VI. Dismissal of the Premeditated Murder Charge

¶34 Quimayousie argues the superior court should have barred 

the State from dismissing the first degree murder charge based on 

premeditation. We disagree. “Choosing which offense to charge and 

prosecute is within the discretion of the prosecutor.” State v. Lopez, 174 

Ariz. 131, 143, 847 P.2d 1078, 1090 (1992). The State may withdraw a theory 

of first degree premeditated murder after the close of evidence and proceed 

solely on a theory of first degree felony murder. Id. 

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¶35 Here, the State charged Quimayousie with a single count of 

first degree murder, but alleged alternate theories of premeditated and 

felony murder. See Ariz. Rev. Stat. (“A.R.S.”) § 13-1105(A)(1) and (2) (2012). 

At the conclusion of the evidentiary portion of the trial, the superior court 

held the evidence supported an instruction on second degree murder as a 

lesser-included offense of first degree premeditated murder. Given the 

superior court’s ruling, the State elected to dismiss the premeditation 

theory and proceed solely on the felony murder theory. Thus, the superior 

court properly dismissed the premeditation theory. 

VII. Refusal to Instruct on Lesser-Included Offenses

¶36 Quimayousie argues the superior court should have 

instructed the jury on lesser-included offenses of first degree murder even 

though the only charge of murder that remained was first degree felony 

murder. We reject this argument; there are no lesser-included offenses to

felony murder. Davolt, 207 Ariz. at 213, ¶ 92, 84 P.3d at 478. 

CONCLUSION

¶37 For the foregoing reasons, we affirm Quimayousie’s 

convictions and sentences. 

14