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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

CEMALUDIN DANIEL VESELI, II, 

Appellant. 

No. 1 CA-CR 14-0151 

 

Appeal from the Superior Court in Coconino County 

No. S0300CR201200404 

The Honorable Cathleen Brown Nichols, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Joseph T. Maziarz 

Counsel for Appellee 

Coconino County Public Defender’s Office, Flagstaff 

By H. Allen Gerhardt, Jr. 

Counsel for Appellant 
STATE v. VESELI 

Decision of the Court 

2 

MEMORANDUM DECISION 

Judge Patricia A. Orozco delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Michael J. Brown joined. 

O R O Z C O, Judge: 

¶1 Cemaludin Daniel Veseli, II appeals from his conviction on 

one count of second degree murder, a Class 1 felony. He contends (1) the 

trial court committed reversible error when it refused to instruct the jury on 

accident, his theory of the case; and (2) reversible error occurred because a 

key phrase in a Revised Arizona Jury Instruction (RAJI) on manslaughter 

was omitted. For reasons set forth below, we affirm. 

FACTS1 AND PROCEDURAL HISTORY 

¶2 Veseli shot and killled his girlfriend (the Victim) in the face 

with a rifle at his studio apartment. Before the shooting, both the Victim 

and Veseli had been drinking “hard alcohol.” Veseli was “being very 

mean” and calling the Victim names. Although they were entertaining 

guests at a barbecue at their apartment, the mood “wasn’t happy.” 

¶3 At some point, one of the guests saw Veseli go into his closet, 

retrieve his rifle and load it. The Victim took the rifle away from Veseli, ran 

outside and gave it to her friend who tried to take the weapon to her car. 

Before the friend reached her car, however, Veseli caught up with her and 

took the rifle back. Veseli then “[walked] back kind of fast towards his 

apartment” with the rifle. Two guests tried to convince the Victim to leave 

with them, but she refused, stating she would “try to calm [Veseli] down.” 

One guest saw Veseli sitting at the foot of the bed with the rifle in his hand 

and the butt resting on the ground, and the victim standing next to him. 

The guest then heard Veseli call the victim “a whore. Veseli appeared 

angry. 

¶4 Several guests left Veseli’s apartment and went to an 

apartment next door. As they were leaving, two of them heard Veseli 

 

1 We view the facts in the light most favorable to sustaining the jury’s 

verdict and resolve all reasonable inferences against Veseli. See State v. 

Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005). 
STATE v. VESELI 

Decision of the Court 

3 

“chamber a round in the gun.” Approximately “thirty seconds to a minute” 

later, one guest heard a shot. The guest ran to Veseli’s apartment and saw 

Veseli running away; the guest heard Veseli say “Oh, my God. Oh, my 

God.” Another guest stated that Veseli said: “Oh, my God, I did it. I did it. 

I actually did it. I shot you in the face, baby.” 

¶5 A guest entered the apartment to check on the Victim and 

found her lying face up in “a lot of blood.” The guest checked her pulse 

and concluded the victim was dead. Several guests then drove to a nearby 

pay phone to call 911 after they were unable to get cell phone reception at 

the apartment complex. 

¶6 Officers arrived at the apartment and found the Victim lying 

on the ground at the foot of the bed. A cell phone was between her left 

hand and leg.2 When paramedics arrived, they determined that the Victim 

had been “deceased for a period that did not warrant an effort at 

resuscitation.” A police officer outside the apartment complex attempting 

to locate Veseli was “surprised” when Veseli “jumped up from behind the 

bushes.” At the officer’s commands, Veseli “put his hands in the air,” 

“identified himself” and was taken into custody. The officer observed 

blood on Veseli’s shorts, left thigh and right shin. 

¶7 Veseli’s rifle was located inside the apartment on the bed, 

with live rounds in the chamber but the safety on. A live round and empty 

shell casing were found on the bed. The shell casing on the bed had been 

ejected from the rifle. A deformed bullet was recovered from a wallboard. 

The physical evidence established that the Victim was shot “basically 

horizontal” or “level” from a distance of approximately two and a half feet 

as she sat on the “foot end corner” of the bed and had moved or was 

moving. 

¶8 The State charged Veseli with premeditated first degree 

murder based on its theory that he shot the victim because he was jealous 

and suspected that the Victim was possibly cheating on him. Evidence 

established that the Victim was still in touch with her ex-husband and 

several former boyfriends. Veseli testified that he was drunk and shot the 

victim by accident as he unloaded the rifle. Veseli denied being angry or 

upset with the Victim and denied calling her a “whore.” He also testified 

that, when he realized he had shot the Victim, he put the barrel of the rifle 

under his chin to kill himself, but he could not go through with it. Veseli 

 

2 Testimony at trial established that moments before the shooting the 

Victim had called a former boyfriend to ask if he could come pick her up. 
STATE v. VESELI 

Decision of the Court 

4 

testified that he ran around the corner to his mother’s house for help rather 

than to the apartment the guests had gone to because he thought “no one 

was there.” 

¶9 The jury found Veseli guilty of the lesser included offense of 

second degree murder, a Class 1 felony, and also that the offense involved 

domestic violence. The trial court later sentenced defendant to a 

presumptive term of sixteen years’ imprisonment, and this timely appeal 

followed. We have jurisdiction pursuant to Article 6, Section 9 of the 

Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-

120.21.A.1 (West 2015),3 13-4031 and 13-4033 (West 2015). 

DISCUSSION 

I. Failure to Give “Accident” Instruction 

¶10 Claiming a due process right to “a theory of the case 

instruction,” Veseli asked the trial court to instruct the jury as follows: 

You have heard evidence that at the time in question, Mr. 

Veseli discharged his rifle by accident. An act is not done 

intentionally or knowingly if done by accident. Prior to 

finding Mr. Veseli acted intentionally or knowingly, you must 

be convinced beyond a reasonable doubt, that Mr. Veseli did 

not discharge the rifle by accident. 

¶11 “A party is entitled to an instruction on any theory reasonably 

supported by the evidence.” State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16, 961 

P.2d 1006, 1009 (1998). “Nevertheless, a trial court generally is not required 

to give a proposed instruction when its substance is adequately covered by 

other instructions.” Id. “Nor must the trial court give every specific 

instruction requested by the defense. Instead the test is whether the 

instructions adequately set forth the law applicable to the case.” Id. 

¶12 Jury instructions are reviewed in their entirety when 

determining whether they adequately reflect the law. Id. at 61-62, ¶ 16, 961 

P.2d at 1009-10. Furthermore, closing arguments may be considered when 

assessing a jury instruction’s adequacy. State v. Doerr, 193 Ariz. 56, 65, ¶ 38, 

969 P.2d 1168, 1177 (1998) (internal citation omitted). This court will reverse 

 

3 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
STATE v. VESELI 

Decision of the Court 

5 

only if the instructions collectively would have misled the jurors. Id. at 65, 

¶ 35, 969 P.2d at 1168 (citation omitted). 

¶13 Refusing a requested instruction is not error when the jury 

instructions given by the trial court adequately set forth the applicable law. 

State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982). The trial court 

here properly instructed the jury on the applicable law regarding both the 

charged offense and the lesser-included offenses of second degree murder, 

manslaughter and negligent homicide as well as the pertinent mental states. 

In conjunction with those instructions, Veseli’s counsel thoroughly argued 

an accident theory in closing argument. He asserted that Veseli had not 

knowingly or intentionally shot the Victim but that, because of intoxication, 

he was, at best, guilty of negligent homicide by “fail[ing] to recognize a 

substantial and unjustifiable risk of causing the death of another.” On this 

record, we find the trial court did not abuse its discretion in refusing to give 

Veseli’s requested instruction. 

II. Omission of Manslaughter Instruction 

¶14 In addition to premeditated murder, the trial court instructed 

the jury on the lesser included offenses of second degree murder, 

manslaughter and negligent homicide. Veseli contends that the trial court 

committed reversible error by failing to include the following language 

contained in RAJI 11.03(A)(1) on reckless manslaughter: 

Second degree murder and manslaughter may both result 

from recklessness. The difference is that the culpable 

recklessness involved in manslaughter is less than the 

culpable recklessness involved in second degree murder. 

¶15 Veseli acknowledges he did not object to the final instructions 

or raise this issue before the trial court. Consequently, our review is limited 

to fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 

P.3d 601, 607 (2005). Fundamental error is “’error going to the foundation 

of the case, error that takes from the defendant a right essential to his 

defense, and error of such magnitude that the defendant could not possibly 

have received a fair trial.’” Id. (citation omitted). Prevailing under this 

standard requires a defendant to establish both that fundamental error 

occurred and that the error caused prejudice. Id. at ¶ 20, 115 P.3d at 567. A 

defendant bears the burden of proving prejudice and may not simply rely 

on speculation to meet that burden. See State v. Munninger, 213 Ariz. 393, 

397, ¶ 14, 142 P.3d 701, 705 (App. 2006). 
STATE v. VESELI 

Decision of the Court 

6 

¶16 Even if the trial court erred by omitting the recommended 

RAJI language, reversal is not warranted because Veseli has failed to prove 

resulting prejudice. Veseli maintains that the jury here was “in effect, told 

that the elements of both the greater and the lesser offenses are identical” 

and was not “provided with adequate explanations concerning the 

differences between Second Degree Murder and Manslaughter.” 

¶17 The record shows that trial court correctly instructed the jury 

on the differing statutory elements of second degree murder, manslaughter 

and negligent homicide. The trial court also correctly instructed the jury on 

the definitions of “intentionally,” “knowingly” and “recklessly.” See A.R.S. 

§ 13-105.10. The trial court properly instructed the jury that, if the State 

proved recklessness beyond a reasonable doubt, it was no defense that the 

person who created the risk was unaware of it solely because of voluntary 

intoxication. Despite the language Veseli claims was necessary, the jury 

received proper instructions on the elements of the lesser-included offenses. 

We presume the jury followed the instructions. See State v. LeBlanc, 186 

Ariz. 437, 439, 924 P.2d 441, 443 (1996). 

¶18 More importantly, Veseli has not proven prejudice. Veseli’s 

trial defense focused on arguing that he was guilty only of negligent 

homicide. Veseli has not shown that the jury instruction’s omitted the 

distinction between second degree murder and manslaughter went to the 

“foundation of his case” or affected his defense so significantly that he 

“could not possibly have received a fair trial.” See Henderson, 210 Ariz. at 

567, ¶ 19, 115 P.3d at 607. 

CONCLUSION 

¶19 For the foregoing reasons, we affirm Veseli’s conviction and 

sentence.