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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       KEISHAUN GREEN, Appellant.

                             No. 1 CA-CR 16-0380
                               FILED 2-22-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-004868-001
                 The Honorable Pamela S. Gates, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                            STATE v. GREEN
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Patricia A. Orozco1 joined.


B R O W N, Judge:

¶1             Keishaun Green appeals from his convictions and sentences
for first-degree felony murder and attempted armed robbery. Green
challenges the sufficiency of the evidence supporting the convictions and
argues the trial court erred by (1) failing to make findings for use of
restraints at trial, (2) admitting a video in which he was wearing jail
clothing, (3) admitting testimony that he appeared to be considering fleeing
from police, and (4) refusing to give a third-party culpability instruction.
For the reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The convictions stem from the fatal shooting of a clerk at a
convenience store. At trial, the State presented evidence that Green entered
the store, walked to the counter, and within seconds, shot the clerk and fled
without taking anything. There were no witnesses to the shooting, but
surveillance video cameras recorded the entire incident. The quality of the
video was poor, but the police linked Green to the shooting after he was
found in possession of a handgun that matched the bullet used to kill the
victim. During further investigation, a friend of Green informed the police
that Green showed him a picture of the shooter from the surveillance video
that had been broadcast on television and admitted that he was the person
who shot the victim.

¶3            Green was indicted on charges of first-degree felony murder,
a class 1 felony, and attempted armed robbery, a class 3 felony, both
dangerous offenses. A jury convicted Green on both counts as charged.
The trial court sentenced Green to natural life on the murder conviction, to


1     The Honorable Patricia A. Orozco, retired Judge of the Arizona
Court of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article VI, Section 3 of the Arizona Constitution.




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                            Decision of the Court

begin upon release in CR2013-428030-001, and to a concurrent presumptive
7.5-year prison term on the conviction for attempted armed robbery.
Green timely appealed.

                               DISCUSSION

      A.      Sufficiency of Evidence

¶4             Green contends the evidence was insufficient to support his
convictions. Specifically, he asserts there was no evidence on the element
of intent with respect to the offense of attempted armed robbery, which
served as the predicate offense for the felony murder. We review claims of
insufficient evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011).

¶5             In considering claims of insufficient evidence, this court’s
review is limited to whether substantial evidence supports the verdicts.
State v. Scott, 177 Ariz. 131, 138 (1993); see also Ariz. R. Crim. P. 20(a)
(requiring trial court to enter judgment of acquittal “if there is no
substantial evidence to warrant a conviction”). Substantial evidence is
evidence, viewed in the light most favorable to sustaining the verdict, from
which a reasonable person could find a defendant guilty beyond a
reasonable doubt. State v. Roseberry, 210 Ariz. 360, 368-69, ¶ 45 (2005).

¶6             A person commits armed robbery if, while taking property
from the presence of another against his will, such person is armed with a
deadly weapon and threatens or uses force with the intent to coerce the
surrender of property or to prevent resistance. Ariz. Rev. Stat. (“A.R.S.”)
§§ 13-1902(A), -1904(A). As applicable here, a person commits attempt if,
acting with the kind of culpability otherwise required for the commission
of an offense, the person intentionally does or omits to do anything which
is any step in a course of conduct planned to culminate in the commission
of the offense. Id. § 13-1001(A)(2). Green challenges the sufficiency of the
evidence on the issue of his intent to take property, arguing that, at best, the
evidence showing he took nothing made the question of his intent
ambiguous and speculative.

¶7            A defendant’s mental state “will be rarely provable by direct
evidence.” State v. Noriega, 187 Ariz. 282, 286 (App. 1996). Thus, a jury “will
usually have to infer it from his behaviors and other circumstances
surrounding the event.” Id.; see also State v. Routhier, 137 Ariz. 90, 99 (1983)
(“Criminal intent, being a state of mind, is shown by circumstantial
evidence.”); State v. Ramos, 133 Ariz. 4, 6 (1982) (“Intent to commit theft or
any felony can be shown by circumstantial evidence.”). Here, viewed in its
entirety, the evidence permits a finding beyond a reasonable doubt that


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                             STATE v. GREEN
                            Decision of the Court

Green had the requisite intent to commit armed robbery when he entered
the store and pointed the handgun at the clerk.

¶8            First, the video depicts Green’s actions in entering the store
and exhibiting a weapon all completely consistent with a person intending
to commit an armed robbery. See State v. VanWinkle, 230 Ariz. 387, 392, ¶ 16
(2012) (“Importantly, the jury watched surveillance video from which it
could infer [the defendant]’s intent”). Second, there was testimony that
Green was in need of money, thereby establishing a financial motive for an
attempted robbery. Third, evidence was presented that the victim laughed
at Green when he displayed the handgun, which provides an explanation
why he shot the clerk and fled without continuing with his attempt to
coerce money from the clerk. Finally, the trial record lacks any alternative
explanation for Green’s actions in the store other than a failed attempted
robbery. Cf. State v. Williams, 166 Ariz. 132, 139-40 (1987) (finding evidence
sufficient to support pecuniary gain as an aggravating factor when the
defendant killed a witness during a home burglary because “[n]o
explanation for the killing exists other than that [the victim] was killed
because he discovered a burglary in progress”).

¶9           The fact that Green decided to flee without taking anything is
what reduces the offense to an attempt; it does not preclude a finding that
he had the intent to commit an armed robbery. See State v. Nash, 143 Ariz.
392, 404 (1985) (“[I]t is unnecessary for the prosecution to negate every
conceivable hypothesis of innocence when guilt has been established by
circumstantial evidence.”). We therefore conclude that there was sufficient
evidence of Green’s intent to support the jury’s verdicts.

       B.     Use of Restraints at Trial

¶10            Green argues the trial court erred when it failed to make
specific factual findings before permitting the sheriff’s office to restrain him
with a stun belt and leg braces at trial. Green made a pretrial objection to
the use of any restraints at trial, noting the sheriff’s office has a blanket
policy that requires an in-custody inmate to wear a leg brace and stun belt.
Citing Deck v. Missouri, 544 U.S. 622 (2005), Green argued that use of
restraints was unconstitutional and that the leg brace and stun belt would
interfere with his colostomy bag. The trial court overruled the objection
after confirming with Green that the restraints employed by the sheriff’s
office did not interfere with his colostomy bag.

¶11           “Matters of courtroom security are left to the discretion of the
trial court.” State v. Davolt, 207 Ariz. 191, 211, ¶ 84 (2004). A trial court



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                              STATE v. GREEN
                             Decision of the Court

abuses its discretion, however, in allowing visible restraints at trial in the
absence of a particularized inquiry into their necessity. Deck, 544 U.S. at
629; State v. Gomez, 211 Ariz. 494, 502-03, ¶¶ 40-41 (2005). Reversal is
required for a Deck violation unless the State can prove beyond a reasonable
doubt harmless error. Deck, 544 U.S. at 635.

¶12           No claim was made in the trial court or on appeal that the
restraints used were visible to the jury. Absent a showing that the jury was
aware of the use of the restraints, no basis exists for reversal. See State v.
Dixon, 226 Ariz. 545, 552, ¶¶ 28-31 (2011).

¶13           On appeal, Green expands his objection to the use of restraints
to include claims that use of a stun belt poses risks of interfering with a
defendant’s right to counsel, interfering with a defendant’s right to be
present and meaningfully participate at trial, and chilling a defendant’s due
process right to testify on his own behalf. None of these claims regarding
use of a stun belt were raised below. Consequently, appellate review of
these claims has been forfeited except for fundamental error. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2011). Under this standard of review,
Green bears the burden of establishing the existence of both fundamental
error and resulting prejudice. Id. at 567, ¶ 20.

¶14             For an error to be “fundamental,” a defendant “must show
that the error complained of goes to the foundation of his 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. The record is devoid of any
indication that use of the stun belt at trial had any effect on Green’s ability
to assist his counsel, or impacted his rights to be present or to testify at trial.
Because the record lacks any indicia that the concealed restraints influenced
the trial in any manner, Green has failed to meet his burden of establishing
fundamental error. See Dixon, 226 Ariz. at 551-52, ¶¶ 26, 29-31 (unseen
restraints did not violate defendant’s right to a fair trial and order requiring
their use without adequate inquiry did not constitute fundamental error).

        C.     Video of Interview in Jail Clothing

¶15           Green argues the trial court erred in admitting a video of a
detective questioning him while he was wearing jail clothing. He contends
admission of the video was unfairly prejudicial and violated his right to the
presumption of innocence. In admitting the video, the trial court ruled that
it was relevant and its probative value was not substantially outweighed by
the danger of unfair prejudice. We review a trial court’s ruling on the




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                             STATE v. GREEN
                            Decision of the Court

admission of evidence for abuse of discretion, but review constitutional
issues de novo. State v. Smith, 215 Ariz. 221, 228, ¶ 20 (2007).

¶16            A state cannot compel an accused to stand trial before a jury
in prison clothing. Estelle v. Williams, 425 U.S. 501, 512 (1976). The rationale
behind this rule is that attending a trial in jail clothing could impair the
fundamental presumption that the defendant is innocent until proven
guilty beyond a reasonable doubt. Id. at 504. In announcing this rule, the
Supreme Court explained that a defendant’s jail clothing at trial would be
a constant reminder to the jury that the defendant is in custody and would
tend to undercut the presumption of innocence by creating an unacceptable
risk that the jury would improperly consider this factor. Id. at 504-05.

¶17            Green was not tried while dressed in jail clothing. At issue is
a relatively brief video of him being interviewed by a detective regarding
the shooting. Green fails to cite any authority that admitting an otherwise
relevant video of him being questioned while in jail clothing is tantamount
to forcing him to wear jail clothing throughout his trial. Introduction of
evidence such as an interview video, jail calls, or other similar material that
shows a defendant has been in custody at some point does not implicate the
same concerns as forcing a defendant, against his will, to wear jail clothing
at trial because such evidence is not a “constant reminder of the accused’s
condition” during the trial that “furthers no essential state policy.” Id.; see
also State v. Murray, 184 Ariz. 9, 35 (1995) (holding that knowledge by jury
that defendants spent some time in custody prior to trial was not prejudicial
and did “not deny the defendants the presumption of innocence”); State v.
Taylor, 240 S.W.3d 789, 794-96 (Tenn. 2007) (holding admission of video of
defendant wearing jail attire did not violate defendant’s due process rights
or impair the presumption of innocence.).

¶18           The trial court did not err in refusing to exclude the video as
unfairly prejudicial. Relevant evidence is generally admissible. Ariz. R.
Evid. 402. Relevant evidence may be excluded, however, “if its probative
value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
Ariz. R. Evid. 403. The trial court is in the best position to determine the
balance of probative value and prejudice and is therefore accorded wide
deference in such rulings. State v. Via, 146 Ariz. 108, 122 (1985). On appeal,
we view the challenged evidence “in the light most favorable to its
proponent, maximizing its probative value and minimizing its prejudicial
effect.” State v. Ortiz, 238 Ariz. 329, 333, ¶ 5 (App. 2015) (citations and
internal punctuation omitted).


                                       6
                             STATE v. GREEN
                            Decision of the Court

¶19            The video of the interview was relevant in showing Green’s
reactions when confronted by the detective regarding the shooting.
Moreover, the jury was aware that Green was arrested and thus spent some
time in custody prior to trial. Consequently, being depicted in custody in
the video did not inform jurors of anything they did not already know. See
Murray, 184 Ariz. at 35. In addition, to mitigate any potential prejudice, the
trial court proposed a limiting instruction regarding Green’s in-custody
status in the video. With the concurrence of the parties, the court instructed
the jury both at the time the video was admitted and in the final jury
instructions that “[w]hether the defendant has been in custody at any time
should not be considered by you for any purpose, influence your view of
the evidence or impact your deliberations in any way.” We presume the
jurors followed the court’s instruction. State v. Newell, 212 Ariz. 389, 403, ¶
68 (2006). On this record, the trial court acted within its discretion in
admitting the interview video.

       D.     Testimony of Possible Flight

¶20            Green argues the trial court erred in allowing a police officer
to testify that Green appeared to be considering fleeing when he was
stopped on the street by the officer at gunpoint two weeks after the shooting
of the clerk. The stop was made for an unrelated incident, but was relevant
to the charged offenses because during the stop the officer found Green in
possession of the handgun subsequently determined to have been used to
shoot the victim.

¶21           At issue is the following testimony elicited by the prosecutor
from the officer:

       Q.  When you saw [Mr. Green] in that area, what did you
       do?

       A.     I contacted him. I ordered him to get down on the
       ground. He didn’t immediately comply. He kind of looked
       around in a nervous fashion as though he was looking for a
       way out, somewhere to run. As it happened we were in a
       location that he didn’t really have anywhere to go. I repeated
       the command a couple more times and he eventually
       complied.

       Q.   Did you have your service weapon drawn at him?

       A.   I did.



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                             STATE v. GREEN
                            Decision of the Court

Green contends this testimony should have been precluded as irrelevant
and unfairly prejudicial. We review a trial court’s rulings on the admission
of evidence for abuse of discretion. Davolt, 207 Ariz. at 208, ¶ 60.

¶22            Evidence is relevant if it has any tendency to make a fact of
consequence more or less probable than it would be without the evidence.
Ariz. R. Evid. 401. “This standard of relevance is not particularly high.”
State v. Oliver, 158 Ariz. 22, 28 (1988). Actions from which a jury may infer
consciousness of guilt for the crime charged is relevant as an admission by
conduct. State v. Bible, 175 Ariz. 549, 592 (1993).

¶23            We are not persuaded by Green’s argument that the officer’s
testimony about his initial reaction to the officer’s weapon and commands
were irrelevant to the charged offenses because the stop occurred two
weeks after the shooting. Regardless of when the stop occurred, Green’s
actions evincing some consideration on his part to flee from the officer
could be reasonably found by the jurors to be indicative of consciousness of
guilt with respect to the shooting of the clerk in light of the fact that he was
found in possession of the murder weapon during the stop. The trial court
could further find that the probative value of the officer’s testimony was
not substantially outweighed by the danger of any unfair prejudice from
the officer’s use of his weapon to make the stop. See Ariz. R. Evid. 403.

¶24           Green’s argument that the officer’s testimony should have
also been precluded as misleading is equally without merit. The fact the
stop was made for a separate incident and Green was not a suspect in the
shooting of the victim at the time did not render its admission erroneous.
Because Green was in possession of the murder weapon when he was
stopped, his initial response to the officer was still relevant to show
consciousness of guilt with respect to the shooting of the clerk even if there
may have been other explanations for how he acted. See State v. Jeffers, 135
Ariz. 404, 415 (1983) (holding evidence of escape from jail was relevant to
show consciousness of guilt, even though there may have been other
explanations for the attempted escape). The existence of any alternative
explanation for his initial response when stopped by the officer goes to the
weight of the evidence, not its admissibility. Id. The trial court did not err
in allowing the officer’s testimony.

        E.    Third-Party Culpability Instruction

¶25          Green argues the trial court erred in denying his request for a
third-party culpability instruction. The court denied the request on
grounds that the substance of the instruction was adequately covered by



                                       8
                             STATE v. GREEN
                            Decision of the Court

other instructions. We review the trial court’s refusal of the instruction for
abuse of discretion and “review de novo . . . whether the jurors were
properly instructed.” State v. Dann, 220 Ariz. 351, 364, ¶ 51 (2009).

¶26           A defendant is entitled to an instruction “on any theory
reasonably supported by the evidence.” State v. Moody, 208 Ariz. 424, 467,
¶ 197 (2004). The trial court is not required to give a requested instruction,
however, when other instructions adequately cover its substance. State v.
Rodriguez, 192 Ariz. 58, 61, ¶ 16 (1998). Our supreme court has held that
where the jury is properly instructed on the presumption of innocence and
the State's burden of proof, a third-party culpability instruction is not
required because “the substance of the instruction [is] adequately covered”
by the other instructions. State v. Parker, 231 Ariz. 391, 405, ¶¶ 55–56 (2013).

¶27           In this case, the trial court properly instructed the jury on the
presumption of innocence and the State’s burden to prove “each element of
each charge beyond a reasonable doubt.” Thus, the trial court did not abuse
its discretion in refusing the requested instruction on third-party
culpability.

¶28           Green’s reliance on Rodriguez in arguing that the standard
burden of proof instructions are not adequate to cover the substance of his
requested third-party culpability instruction is misplaced. Rodriguez is
readily distinguishable as it involved a request for an alibi defense
instruction, not a third-party culpability instruction. 192 Ariz. at 61, ¶ 15.
In concluding the trial court erred in refusing the request for an alibi
defense instruction, our supreme court held “the standard burden of proof
instructions do not redress the risk of burden shifting engendered by alibi
evidence.” Id. at 63, ¶ 26.

¶29            In contrast with Rodriguez, our supreme court expressly held
in Parker that the standard presumption of innocence and burden of proof
instructions adequately cover the substance of a third-party culpability
instruction, noting “[n]o Arizona case has required a third-party culpability
instruction.” 231 Ariz. at 405, ¶¶ 55-56. We are bound by the decisions of
the Arizona Supreme Court and have no authority to overrule, modify, or
disregard them. State v. Smyers, 207 Ariz. 314, 318 n.4, ¶ 15 (2004).




                                       9
                          STATE v. GREEN
                         Decision of the Court

                             CONCLUSION

¶30          For the foregoing reasons, we affirm Green’s convictions and
sentences.




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




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