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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   CHARLES F. GEORGE, JR., Appellant.

                             No. 1 CA-CR 18-0133
                               FILED 4-16-2019


          Appeal from the Superior Court in Maricopa County
                       No. CR 2012-149359-001
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Edward F. McGee
Counsel for Appellant
                             STATE v. GEORGE
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.


C A M P B E L L, Judge:

¶1             Charles George, Jr., timely appeals his convictions and
sentences for four counts of aggravated driving or actual physical control
while under the influence of intoxicating liquor or drugs (“DUI”), all class
4 felonies. He argues the court erroneously gave the jury an instruction on
flight. For the following reasons, we affirm.

                              BACKGROUND

¶2            Following a jury trial, George was convicted of four counts of
aggravated DUI. The State alleged George drove a vehicle while under the
influence of intoxicating liquor and had a blood alcohol concentration
(“BAC”) of 0.08 or more in his body within two hours of driving, while his
driver’s license was suspended and after he had been convicted of a DUI
within eighty-four months.

¶3            At trial, the State presented evidence that George was driving
down a residential street when he hit a curb and lost control of his car before
crashing into a lamp pole. A man witnessed the event from his bedroom
window. He ran outside and approached the car. When he asked the driver
if he was injured, George responded, “I’ve got to get out of here.” George
then started the car and tried to drive away. The witness opined that the car
was “totaled”—no longer operational.

¶4            Another neighborhood man witnessed George trying to start
the car. He told George to “sit tight” and took the key out of the ignition.
George opened the car door, demanding the return of the key. The witness
handed it back. George got out of the car and walked over to a greenbelt
area. The men told George to wait because police were on their way, but he
continued walking away.

¶5            Officer Host was the first officer to arrive. The witnesses told
the officer that the driver of the car had walked away, heading into the
greenbelt. Officer Host observed George in the greenbelt and yelled out for
him to “stop and come back.” George continued walking. Officer Host ran


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                             STATE v. GEORGE
                            Decision of the Court

after him and asked George to return to the car. George was not completely
cooperative, so Officer Host increased the forcefulness of his verbal
requests and eventually had to “put[] [his] hands on [George] and guid[e]
him back on the scene.” George was arrested shortly after the accident and
taken to the hospital for medical treatment, where he later lost
consciousness.

¶6            Officer Miyazato took over the investigation at the hospital.
He obtained a search warrant and took a blood sample from George. An
Arizona Department of Public Safety forensic scientist tested the blood
sample and determined that George had a BAC of 0.285 approximately two
hours after the crash.

¶7            Over George’s objection, the court gave the jury a flight
instruction that read as follows:

       In determining whether the State has proved the Defendant
       guilty beyond a reasonable doubt, you may consider any
       evidence of the Defendant’s running away with all the other
       evidence in the case. You may also consider the Defendant’s
       reasons for running. Running away after a crime has been
       committed does not by itself prove guilt.

During closing arguments, George argued that he went into the greenbelt
area because he was confused from the impact of the accident; he further
argued that his confusion was evidenced by the fact that he became
unconscious in the hospital. The jury convicted George of all four counts,
and the court sentenced him to a slightly aggravated term of 10.5 years in
prison.

                                DISCUSSION

¶8             On appeal, George argues giving the jury instruction on flight
was in error because there was no evidence to support the notion that he
ran or tried to conceal himself from law enforcement. We review the court’s
decision to give a jury instruction for an abuse of discretion. State v. Johnson,
205 Ariz. 413, 417, ¶ 10 (App. 2003). A party is entitled to a jury instruction
on any theory if reasonably supported by the evidence. Id.

¶9            “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. Solis, 236 Ariz. 285, 286, ¶ 7 (App. 2014). A
flight instruction is warranted if the evidence “supports a reasonable
inference that the flight or attempted flight was open, such as the result of


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                             STATE v. GEORGE
                            Decision of the Court

an immediate pursuit.” State v. Smith, 113 Ariz. 298, 300 (1976). A defendant
does not have to run from police or the place of the crime for a flight
instruction to be justified, see State v. Clark, 126 Ariz. 428, 434-35 (1980);
however, because merely leaving the scene of a crime is not evidence of
flight, Smith, 113 Ariz. at 300, a flight instruction is proper only if the
defendant’s “manner of leaving . . . reveal[s] a consciousness of guilt,”Clark,
126 Ariz. at 434. And the existence of an alternative explanation for the
defendant’s behavior does not render a flight instruction inappropriate so
long as the evidence supports a consciousness of guilt. State v. Hunter, 136
Ariz. 45, 48-49 (1983).

¶10           At trial, George argued the evidence did not justify a flight
instruction because he walked away from the car at a normal pace and did
not run when Officer Host called for him to stop. George points to his
confusion and eventual unconsciousness and hospitalization as plausible
explanations for why he walked away. George likens his conduct to that of
the defendant in State v. Wilson, who did not leave the crime scene in haste
or pursuit, but instead “went home and awaited the expected arrival of the
police.” 185 Ariz. 254, 257 (App. 1995) (holding that inclusion of a flight
instruction was in error).

¶11           Sufficient evidence shows that George walked away from the
car after crashing into the pole to avoid being caught by police. The
witnesses testified George said, “I’ve got to get out of here,” and attempted
to back away from the pole. After George was told that the police were on
their way, he walked away from the mangled car and into the greenbelt.
Unlike the defendant in Wilson, who left before police arrived, George
disregarded Officer Host’s command to stop and return to the car. The jury
was free to infer that this movement away from the scene of the accident
reflected a consciousness of guilt. See State v. Earby, 136 Ariz. 246, 248 (App.
1983). George was free to argue his alternative theory of confusion and
allow the jury to choose between the competing theories. See Hunter, 136
Ariz. at 49. It merely created a fact question for the jury to decide.
Consequently, the court did not abuse its discretion by giving the flight
instruction.




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                    STATE v. GEORGE
                   Decision of the Court

                      CONCLUSION

¶12   We affirm George’s convictions and sentences.




               AMY M. WOOD • Clerk of the Court
                FILED: AA




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