                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                    ALBERTO M. SOLIS, Appellant.

                         No. 1 CA-CR 13-0770
                          FILED 12-16-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2012-156270-001
              The Honorable Edward W. Bassett, Judge

                      AFFIRMED AS MODIFIED


                              COUNSEL

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Robert A. Walsh
Counsel for Appellee



                             OPINION

Judge Maurice Portley delivered the Opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Randall M. Howe joined.
                             STATE v. SOLIS
                            Opinion of the Court

P O R T L E Y, Judge:

¶1             Alberto M. Solis was convicted and sentenced for assaulting
a police officer and resisting arrest. On appeal, he argues that the trial court
committed reversible error by including a flight instruction in the final
instructions to the jury.1 Although the flight instruction was improper in
this case, we find that it was harmless error and affirm the convictions and
sentences, and modify the sentencing minute entry.

                 FACTS AND PROCEDURAL HISTORY

¶2            Solis was arrested for armed robbery. After he was placed in
the patrol car, Solis started “twitching and jerking,” and the officer called
paramedics, who transported Solis to a hospital emergency room.

¶3             Later that evening, Officer Steven Hastings went to the
hospital to transport Solis to county jail for booking. After being told that
he was under arrest for armed robbery, Solis refused to sign the hospital
discharge paperwork, demanded to see a doctor and then said he had to
use the restroom. Wearing only his hospital gown and socks, Solis walked
down the hallway, passed the restroom, and then sprinted down the
hospital corridor. Officer Hastings chased him and cornered Solis in front
of a locked door. Instead of surrendering, there was a struggle and Solis
struck Officer Hastings on his neck and face before the officer was able to
subdue and handcuff Solis.

¶4             Solis was only indicted for aggravated assault and resisting
arrest. At trial, he unsuccessfully objected to the court giving the jury a
flight instruction, arguing flight was irrelevant to the charged crimes. Solis
was found guilty as charged.

¶5            Solis subsequently admitted he had six prior felony
convictions, and was sentenced as a category three offender to concurrent
prison terms. We have jurisdiction over his appeal pursuant to Article 6,
Section 9 of the Arizona Constitution, and Arizona Revised Statutes
(“A.R.S.”) sections 12.120.21(A)(1), 13-4031 and -4033(A)(1) (2014).




1Solis and the State also request that we correct the sentencing minute entry
to reflect that Solis was sentenced as a category three repetitive offender
and that both offenses were repetitive.


                                       2
                             STATE v. SOLIS
                            Opinion of the Court

                               DISCUSSION

                                       I

¶6              Solis contends that the trial court erred by giving the flight
instruction over his objection because it was unsupported by any evidence.
We review a court’s decision to give a jury instruction for abuse of
discretion. See State v. Anderson, 210 Ariz. 327, ¶ 60, 111 P.3d 369, 385 (2005)
(citing State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995)). However,
we review de novo whether the given instruction correctly states the law.
See State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). And we
view jury instructions as a whole to determine if they “adequately reflect
the law.” State v. Gallegos, 178 Ariz. 1, 10, 870 P.2d 1097, 1106 (1994) (citing
State v. Haas, 138 Ariz. 413, 425, 675 P.2d 673, 685 (1983)).

¶7             A flight instruction should only be given if the State presents
evidence of flight after a crime from which jurors can infer a defendant’s
consciousness of guilt. State v. Parker, 231 Ariz. 391, 403, ¶ 44, 296 P.3d 54,
66 (2013); State v. Bible, 175 Ariz. 549, 592, 858 P.2d 1152, 1195 (1993)
(“[T]here must be evidence of flight from which can be inferred a
consciousness of guilt for the crime charged.”) (quoting State v. Edwards, 136
Ariz. 177, 184, 665 P.2d 59, 66 (1983)). In State v. Smith, our supreme court
established a two-part test to determine if the evidence warrants a flight
instruction. 113 Ariz. 298, 300, 552 P.2d 1192, 1194 (1976) (citing State v.
Rodgers, 103 Ariz. 393, 442 P.2d 840 (1968)). First, “the evidence is viewed
to ascertain whether it supports a reasonable inference that the flight or
attempted flight was open, such as the result of an immediate pursuit.” Id.
Second, if there is no open flight, “then the evidence must support the
inference that the accused utilized the element of concealment or attempted
concealment.” Id. “The absence of any evidence supporting either of these
findings would mean that the giving of an instruction on flight would be
prejudicial error.” Id. (citing State v. Castro, 106 Ariz. 78, 471 P.2d 274
(1970)); State v. Speers, 209 Ariz. 125, 132, ¶ 28, 98 P.3d 560, 567 (App. 2004)
(noting test requires that flight evidence allows jury to “‘be able to
reasonably infer from the evidence that the defendant left the scene in a
manner which obviously invites suspicion or announces guilt’”) (quoting
State v. Weible, 142 Ariz. 113, 116, 688 P.2d 1005, 1008 (1984)).

¶8              The flight instruction was not warranted in this case. There
was no evidence presented to suggest that Solis’s ill-conceived attempt to
run away wearing only a hospital gown and socks reflected a consciousness
of guilt as to the charges that resulted from his conduct at the conclusion of
his dash down the hospital hallway. And on appeal the State concedes it


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                              STATE v. SOLIS
                             Opinion of the Court

should not have asked for the flight instruction and the instruction should
not have been given.

¶9            The State, however, contends that any error was harmless
despite the Smith suggestion that prejudicial error would result if there was
no evidence to support the instruction. We agree.

¶10            Our supreme court has directed us to consider any alleged
errors made during trial for structural error, harmless error or fundamental
error. See, e.g., State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607
(2005); State v. Ring, 204 Ariz. 534, 552, ¶ 45, 65 P.3d 915, 933 (2003); Bible,
175 Ariz. at 588, 858 P.2d at 1191. For example, in Ring, our supreme court
stated that “[m]ost errors that we consider on appeal, even those involving
constitutional error, constitute trial errors, which occurred during the
presentation of the case to the jury, and which may therefore be
quantitatively assessed in the context of other evidence presented.” 204
Ariz. at 552, ¶ 45, 65 P.3d at 933 (quoting Arizona v. Fulminante, 499 U.S. 279,
307-08 (1991) (internal quotation marks omitted).

¶11           Although neither Bible, Ring, nor Henderson directly involved
jury instructions, our supreme court addressed the standard of review for
erroneous jury instructions in State v. Valverde, 220 Ariz. 582, 208 P.3d 233
(2009). There, the court examined whether an erroneous self-defense
instruction that was given without objection was fundamental error, and
determined that it was not. Id. at 583, ¶ 1, 208 P.3d at 234. After reviewing
the three standards of review for trial error in criminal cases, structural
error, harmless error, and fundamental error, id. at 584-85, ¶¶ 9-12, 208 P.3d
at 235-36, the court determined that Valverde had not demonstrated that
the instruction was fundamental error or prejudicial and affirmed the
judgment. Id. at 586, ¶¶ 15-18, 208 P.3d at 237.

¶12             Although our supreme court has yet to revisit the statement
in Smith that giving an unnecessary instruction would be prejudicial error,
it is clear that if there is trial error, including errors involving instructions,
we should not presume prejudice, but instead should rely on the direction
in Valverde to determine whether the error is structural, harmless, or
fundamental. Consequently, because Solis objected to the instruction we
review whether the trial error was harmless. Id. at 585, ¶ 11, 208 P.3d at 236.

¶13           To determine whether the error was harmless, we must
review the evidence and be convinced “beyond a reasonable doubt that the
error did not contribute to or affect the verdict.” Id. (citing Bible, 175 Ariz.
at 588, 858 P.2d at 1191). Here, the evidence supports the convictions



                                        4
                              STATE v. SOLIS
                             Opinion of the Court

beyond a reasonable doubt. A nurse testified that she observed Solis run
down the hallway, past the bathroom and through some double doors.
Then, after going to see what was going on, she saw that “the patient was
extending his arm out to strike the officer” and that the officer raised his
knee “in a defensive move to try to defend himself.” Officer Hastings
testified that after he had Solis cornered, Solis tried to dart around him, and
then Solis hit him in the neck and face. The jury also saw the hospital
surveillance video depicting Solis’s flight and the ensuing altercation.

¶14            In addition to the evidence, in considering whether an
instruction is harmless error, our supreme court has advised us to consider
the attorneys’ statements to the jury. Valverde, 220 Ariz. at 586, ¶ 16, 208
P.3d at 237. Neither Solis nor the State relied on the flight instruction to
attempt to buttress or undermine the facts. Moreover, the trial court
instructed the jury that “[a]s you determine the facts, however, you may
find that some instructions no longer apply. You must then consider the
instructions that do apply, together with the facts as you have determined
them.” Consequently, given the trial evidence, arguments of counsel, and
the instructions as a whole, the inclusion of the flight instruction was
harmless error.

                                        II

¶15             Solis and the State request that we correct the sentencing
minute entry to reflect Solis’s status as a category three repetitive offender
pursuant to A.R.S. § 13-4037 (2014).2 We can correct or modify a minute
entry to reflect the trial court’s intention when the record clearly resolves
the difference between the oral pronouncement of sentence and the minute
entry. Id.; see State v. Ovante, 231 Ariz. 180, 188, ¶ 38, 291 P.3d 974, 982 (2013)
(“When a discrepancy between the trial court’s oral pronouncement of a
sentence and the written minute entry can be clearly resolved by looking at
the record, the ‘[o]ral pronouncement in open court controls over the
minute entry.’ . . . This Court can order the minute entry corrected if the
record clearly identifies the intended sentence.”) (quoting State v. Whitney,
159 Ariz. 476, 487, 768 P.2d 638, 649 (1989)).




2“Except as provided in § 13-704 or 13-705, a person shall be sentenced as
a category three repetitive offender if the person is at least eighteen years
of age or has been tried as an adult and stands convicted of a felony and has
two or more historical prior felony convictions.” A.R.S. § 13-703(C) (2013).


                                        5
                             STATE v. SOLIS
                            Opinion of the Court

¶16            Here, the record is clear that the trial court treated Solis as a
category three offender on each count because his four most recent felony
convictions qualified as historical felonies. See A.R.S. § 13-105(22)(d) (2012)
(defining “historical felony conviction” as “[a]ny felony conviction that is a
third or more prior felony conviction”). In fact, the court said, “I’m going
to impose . . . an enhanced sentence, as a category 3 offender.” The
sentencing minute entry, however, did not capture the court’s oral
statement, but only listed Solis’s convictions as “non-dangerous – non-
repetitive [offenses].” Because the record is clear and the parties agree, we
correct the sentencing minute entry to reflect that Solis was sentenced as a
category three repetitive offender, and both of his offenses were repetitive.

                               CONCLUSION

¶17           For the above reasons, we affirm Solis’s convictions and
sentences, and modify the sentencing minute entry under § 13-4073 to
designate his offenses as repetitive pursuant to § 13-703(C).




                                   :ama




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