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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TOLLY DEVEYON ALLEN, Appellant.

No. 1 CA-CR 15-0281

Appeal from the Superior Court in Maricopa County

No. CR2014-145058-001

The Honorable Danielle J. Viola, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Terry M. Crist, III

Counsel for Appellee

Ballecer & Segal, LLP, Phoenix

By Natalee Segal

Counsel for Appellant
STATE v. ALLEN

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which 

Judge Lawrence F. Winthrop concurred and Judge Donn Kessler concurred 

in part and dissented in part.

S W A N N, Judge:

¶1 Tolly Deveyon Allen (“Defendant”) appeals his convictions 

and sentences for one count of burglary in the first degree, two counts of 

aggravated assault, and two counts of kidnapping. He asserts that the trial 

court committed fundamental error when it excused a juror after the close 

of evidence. Defendant also contends the court fundamentally erred by 

considering improper aggravating factors during sentencing. For the 

following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 A.H. and his adult daughter, S.M., were in their respective 

bedrooms when Defendant, Defendant’s brother, and another individual 

forced entry into A.H.’s home. A.H. was resting on his bed when 

Defendant held him down and pressed a sword blade to A.H.’s throat and 

threatened to kill him. A.H. feared for his life. 

¶3 Meanwhile, S.M. and her boyfriend barricaded themselves in 

her room, and S.M. called 9-1-1. Defendant’s brother threatened S.M. and 

tried to open S.M.’s bedroom door by beating on it with a baseball bat. S.M. 

feared for her life, but before she was harmed, the intruders fled the home 

when they realized police were en route. Officers Gierish and Nielsen 

apprehended the suspects. 

¶4 Alleging both direct and accomplice liability, the state 

charged Defendant with one count of burglary in the first degree, a class 2 

felony (Count 1), two counts of aggravated assault, class 3 felonies (Count 

2 for A.H., and Count 4 for S.M.), and two counts of kidnapping, class 2 

felonies (Count 3 for A.H., and Count 5 for S.M.). The jury found Defendant

 

1 We view the facts in the light most favorable to sustaining the 

verdicts and resolve all reasonable inferences against Defendant. See State 

v. Kiper, 181 Ariz. 62, 64 (App. 1994). 
STATE v. ALLEN

Decision of the Court

3

guilty as charged, and the court imposed aggravated concurrent prison 

sentences for all counts. Defendant appeals. 

DISCUSSION

¶5 To obtain relief under fundamental error review, Defendant

has the burden to show that error occurred, the error was fundamental, and 

it prejudiced him. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20-22 

(2005). Fundamental error is error that “goes to the foundation of [a 

defendant’s] case, takes away a right that is essential to his defense, and is 

of such magnitude that he could not have received a fair trial.” Id. at 568, ¶ 

24. We will not presume prejudice where none appears affirmatively in the 

record. See State v. Trostle, 191 Ariz. 4, 13-14 (1997); State v. Munninger, 213 

Ariz. 393, 397, ¶ 14 (App. 2006).

I. EXCUSED JUROR

¶6 On the fifth day of trial, the court informed counsel that juror 

number 5 “had made inquiry to my bailiff as to post-trial security[.]” The 

court stated it had intended to question the juror, but it had just learned 

that the juror overheard Defendant’s wife “reportedly making some 

comment about court security and a juror being concerned about that.” The 

court noted that juror 5 “was apparently not around the other jurors” when 

the comment was overheard. Upon learning this information, the parties 

agreed to immediately dismiss the juror. Accordingly, the court directed

the bailiff to release the juror, and the court proceeded to review the final 

instructions with the remaining thirteen jurors. 

¶7 Defendant argues the court committed fundamental error in 

releasing the juror without questioning him or her (and the entire jury)

about the expressed security concerns and the statement made by 

Defendant’s wife. Defendant contends “it is unclear . . . if the remaining 

jurors were aware of the concerns of the excused juror or if they overheard 

the family discussing court security.” Defendant summarily asserts, “[b]y 

not making the inquiry, the court prejudiced [him,]” but Defendant does 

not explain the nature of the purported prejudice.

¶8 A defendant in a criminal case is entitled to a fair and 

impartial jury, but he is not entitled to any particular jury. State v. Arnett, 

119 Ariz. 38, 50 (1978). Defendant does not identify anything in the record 

demonstrating that the verdicts in this case resulted from a biased or partial

jury. And despite Defendant’s suggestion to the contrary, the court was not 

required to question juror number 5 or the entire jury. See State v. Dann, 220 

Ariz. 351, 372, ¶ 116 (2009) (holding “the trial court did not abuse its 
STATE v. ALLEN

Decision of the Court

4

discretion by declining to conduct additional hearings or strike . . . jurors” 

who were observed by a defense witness and a member of defendant’s 

family discussing the case amongst themselves).

¶9 We discern no error, fundamental or otherwise; thus, 

Defendant fails to satisfy his burden of establishing reversible error. 

II. SENTENCING: AGGRAVATING FACTORS

¶10 Before sentencing, the jury found that Defendant had 

committed the offenses while on probation. Additionally, based on 

Defendant’s testimony at the aggravation trial, the court found he had two 

prior felony convictions. The jury found that the state proved the presence 

of an accomplice as an aggravating factor for all counts. The court, 

however, found Defendant’s age and family support were mitigating 

factors. 

¶11 For Counts 1 through 3 only, the jury found that the state had 

proven the following two additional aggravating circumstances: 

threatened infliction of serious physical injury; and use, threatened use or 

possession of a deadly weapon or dangerous instrument during the 

commission of a crime. 

¶12 The parties agreed to sentencing of Defendant as a category 3 

repetitive offender as to Counts 1 through 3, rather than as a dangerous 

offender.2 See A.R.S. §§ 13-703, -704. Upon weighing the mitigating and 

aggravating factors, the court imposed slightly aggravated concurrent 

prison terms of 16.25 years for the class 2 felonies (Counts 1, 3, and 5) and 

12 years for the class 3 felonies (Counts 2 and 4). 

¶13 Defendant challenges his sentences for Counts 1 through 3, 

arguing the aggravating factors found by the jury are elements of the 

offenses. Specifically, he argues that (1) possession or use of a dangerous 

weapon is an element of the burglary charge; (2) threatened infliction of 

serious physical injury and use of a dangerous instrument or deadly 

weapon are elements of the aggravated assault charge; and (3) threatened 

infliction of serious physical injury is an element of the kidnapping charge. 

¶14 Because Defendant did not make this argument at sentencing, 

we review for fundamental error. See Munninger, 213 Ariz. at 396, ¶ 10. He 

 

2 Although the jury found Counts 1 through 3 were dangerous 

offenses, the court expressly did not consider that finding at sentencing. 
STATE v. ALLEN

Decision of the Court

5

contends he “is prejudiced if his sentence would have been even a little bit 

lessened.” 

¶15 A person commits burglary in the first degree by entering a 

residential structure with the intent to commit theft or any felony therein 

and knowingly possesses a deadly weapon or dangerous instrument 

during the course of committing the theft or felony. A.R.S. §§ 13-1507(A), 

-1508(B). As charged in this case, a person commits aggravated assault by 

using a deadly weapon or dangerous instrument (here, a sword) to 

intentionally place another in reasonable apprehension of imminent 

physical injury. A.R.S. §§ 13-1203(A)(2), -1204(A)(2). A person commits 

kidnapping by knowingly restraining another with the intent to inflict 

death or physical injury or to otherwise aid in the commission of a felony. 

A.R.S. § 13-1304(A)(3). 

¶16 Based on the foregoing, the offenses of aggravated assault and 

kidnapping do not contain the element of threatened infliction of serious

physical injury. See A.R.S. § 13-105(33), (39) (separately defining “physical 

injury” and “serious physical injury”). Thus, the court did not err, 

fundamentally or otherwise, in considering this factor as an aggravating 

circumstance when determining Defendant’s sentences for Counts 2 and 3. 

See A.R.S. § 13-701(D)(1) (“[T]he trier of fact shall determine and the court 

shall consider the following aggravating circumstances . . . : Infliction or 

threatened infliction of serious physical injury, except if this circumstance is 

an essential element of the offense of conviction . . . .” (emphasis added)).

¶17 We agree with Defendant, however, that possessing or using 

a dangerous instrument or deadly weapon is an essential element of firstdegree burglary and aggravated assault as charged in the indictment. 

Consequently, the court erred in considering the dangerous instrument or 

deadly weapon aggravating factor as to Counts 1 and 2. See A.R.S. § 13-

701(D)(2) (“[T]he court shall consider . . . [as an] aggravating circumstance

[ ] the [u]se, threatened use or possession of a deadly weapon or dangerous 

instrument during the commission of the crime, except if this circumstance is 

an essential element of the offense of conviction . . . . ”(emphasis added)). 

¶18 Although the court erred in this respect, Defendant cannot 

establish that the error was fundamental or that it prejudiced him. 

Defendant committed the offenses while on probation; thus, he could not 

be sentenced to less than the statutory presumptive terms. See A.R.S. § 13-

708(C). Defendant’s probationary status at the time of the offenses, in 

conjunction with his two prior felony convictions and the aggravating 

factor found by the jury (presence of an accomplice), exposed Defendant to 

a sentencing range of 15.75 to 35 years for the burglary conviction and 11.25 
STATE v. ALLEN

Decision of the Court

6

to 25 years for the aggravated assault conviction. See A.R.S. §§ 13-701(D)(4), 

(25), -703(C), (G), (J). Defendant does not challenge the court’s reliance on 

his probationary status and the presence of an accomplice to aggravate his 

sentences.3 Furthermore, the court imposed sentences that are only nine 

months longer than the presumptive terms for both convictions (and more 

than a decade shorter than the maximum terms), and that are well within 

the aggravated range set forth in § 13-703(J). Accordingly, Defendant’s

sentences are lawful and no fundamental error occurred. See State v. Glassel, 

211 Ariz. 33, 58, ¶ 104 (2005) (noting defendant’s failure to challenge trial 

court’s use of aggravators other than one found by the court forecloses 

claim of Blakely error); Munninger, 213 Ariz. at 397, ¶ 12 (sentence that is 

within prescribed aggravated range despite use of improper aggravator is 

a legal sentence); cf. State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002)

(“Imposition of an illegal sentence constitutes fundamental error.”).

¶19 Finally, Defendant has not identified anything in the record 

that indicates that the court would have imposed lesser sentences had it not 

considered the improper aggravator. Indeed, Defendant’s concession that 

“it is unclear whether the trial court would have imposed the same length 

of sentence had she properly considered the aggravators” illustrates the 

speculative nature of his assertion that he “is prejudiced if his sentence 

would have been even a little bit lessened.” See Munninger, 213 Ariz. at 397, 

¶ 14 (holding appellant’s speculation — that trial court would impose 

specific sentence had improper aggravating factor not been considered —

does not show prejudice). Defendant fails to meet his burden of 

establishing that the court committed fundamental prejudicial error in 

imposing the sentences for Counts 1 and 2.

CONCLUSION

¶20 For the foregoing reasons, we affirm Defendant’s convictions 

and sentences

 

3 Defendant also does not argue that the trial court was precluded 

from using his probationary status both to enhance his sentence under §§ 

13-708(C) and -703(G) and as an aggravating factor under §§ 13-701(D)(25)

and -703(G). See State v. Clough, 171 Ariz. 217, 225 (App. 1992) (“The trial 

court may consider as [an] aggravating circumstance[ ] the defendant’s 

prior record.”); State v. LeMaster, 137 Ariz. 159, 166 (App. 1983) (“Double 

jeopardy or double punishment principles do not preclude the trial court 

from using the prior conviction to impose an enhanced sentence . . . and to 

find aggravating circumstances under A.R.S. § 13–702.”).
STATE v. ALLEN

Kessler, J., Concurring in Part and Dissenting in Part

7

KESSLER, Judge, concurring in part and dissenting in part:

¶21 I concur with the majority on the issues of the releasing of the 

juror and the use of aggravators under A.R. S. § 13-701(D)(1). I respectfully 

dissent from the affirming of the sentences for counts 1 and 2 (first-degree 

burglary and aggravated assault as charged in the indictment) based on the 

court’s consideration of A.R.S. § 13-701(D)(2) aggravator of possessing or 

using a dangerous instrument or deadly weapon which is an essential 

element of those two counts. I would remand those two counts for 

resentencing.

¶22 The imposition of an aggravated sentence based in part on 

consideration of a prohibited aggravating factor constitutes fundamental 

error. State v. Trujillo, 227 Ariz. 314, 318, ¶ 15 (App. 2011). When that 

occurs, we will remand for resentencing when “we cannot be certain that 

[the trial court] would have imposed the same sentence absent that factor

. . . .” State v. Munninger, 213 Ariz. 393, 396, ¶ 9 (App. 2006) (internal 

quotation marks and citation omitted). Moreover, we will find prejudice if, 

after a review of the record, an appellant shows the court could have 

reasonably imposed a lighter sentence had it not improperly considered the 

prohibited factor, that is, if the record indicates that the improper factor 

influenced the sentencing decision. Trujillo, 227 Ariz. at 318-19, ¶¶ 16, 21.

¶23 Here, the trial court balanced a number of aggravators against 

a few mitigators to impose aggravated sentences on counts 1 and 2. On this 

record, I cannot be certain the superior court would have imposed the same 

sentence absent the prohibited aggravator, and the appellant has shown 

prejudice. Cf. Munninger, 213 Ariz. at 397, ¶¶ 12, 14 (determining no 

fundamental error or prejudice occurred because the judge expressly found 

that each of the aggravating factors alone would have outweighed the 

mitigating factors). 

¶24 Accordingly, I would remand for resentencing on the 

convictions for first-degree burglary and aggravated assault without the 

aggravating factor of possessing or using a dangerous instrument or deadly

weapon prohibited by A.R.S. § 13-701(D)(2).