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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   BRIAN JOSEPH KENNEDY, Appellant.

                             No. 1 CA-CR 15-0272
                               FILED 4-28-2016


            Appeal from the Superior Court in Navajo County
                        No. S0900CR201300284
                             S0900CR201400277
                               (Consolidated)
                The Honorable Robert J. Higgins, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Colby Mills
Counsel for Appellee

Emery K. LaBarge, Attorney at Law, Snowflake
By Emery K. LaBarge
Counsel for Appellant
                           STATE v. KENNEDY
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Kenton D. Jones joined.


J O H N S E N, Judge:

¶1            Brian Joseph Kennedy appeals his convictions and resulting
sentences for aggravated assault (domestic violence), a Class 4 felony; two
counts of preventing the use of a telephone in an emergency, each a Class 2
misdemeanor; and criminal damage, a Class 2 misdemeanor. For the
reasons that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Kennedy choked his girlfriend during an argument.1 The
victim freed herself by kicking Kennedy, then ran down the hall to her
mother's bedroom. The victim and her mother called 9-1-1 on a landline
phone, but, midway through their call, Kennedy came into the bedroom
and pulled the phone out of the wall, saying, "I'm not going to let you call
9-1-1 on me again." After Kennedy carried the phone out of the bedroom,
the victim tried to use her mother's cell phone to call 9-1-1, but Kennedy
returned and took the cell phone from the victim. Two officers responded.
Upon their arrival, one of the officers noticed redness on the victim's face,
throat and chest. Fifteen minutes later, the officer took photographs of the
victim's injuries, but testified that the redness had begun to fade by that
time.

¶3            After a jury convicted Kennedy, the superior court sentenced
him to two and a half years' incarceration on the aggravated assault
(domestic violence) conviction and three days' incarceration on each of the
other three convictions. Kennedy timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona




1     "We view the facts in the light most favorable to sustaining the
convictions." State v. Robles, 213 Ariz. 268, 270, ¶ 2 (App. 2006).




                                     2
                            STATE v. KENNEDY
                            Decision of the Court

Revised Statutes sections 12-120.21(A)(1) (2016), 13-4031 (2016) and
-4033(A)(1) (2016).2

                               DISCUSSION

A.     Alleged Juror Misconduct.

¶4           The first question on appeal arises from a written question an
unidentified juror submitted at the conclusion of the victim's mother's
testimony. The question asked, "Is [Kennedy] bored? Because he's rocking
back and forth in his chair and yawning."

¶5            Kennedy argues he was denied his right to a fair and
impartial jury because the court did not conduct an inquiry to identify the
juror who had written the note so that Kennedy could move to strike the
juror from the panel. Outside the presence of the jury soon after the
question was received, Kennedy argued the question demonstrated bias,
and asked the court to ascertain which juror wrote the note so that he could
move to strike him or her. The court responded:

       [The question] doesn't comment at all on whether the juror
       thought [the defendant] was innocent or guilty - or not guilty
       or guilty. It was just an observation. And again, we didn't
       read it. So I don't think it was a proper question. But I don't
       think it shows bias, one way or another.

The court added that ascertaining which juror had written the note might
alert the other jurors to the issue, thereby possibly prejudicing the other
jurors. At that, Kennedy moved for a mistrial, and the court denied the
motion.

¶6            We will not overturn a superior court's ruling on a motion
challenging a juror for bias absent clear abuse of discretion. State v. Narten,
99 Ariz. 116, 122 (1965). "We presume that jurors are impartial absent
evidence to the contrary." State v. Payne, 233 Ariz. 484, 510, ¶ 100 (2013).

¶7             Kennedy argues on appeal the court erred by refusing to
inquire into the identity of the juror who wrote the question and to try to
ascertain whether that juror was biased. He argues the juror's question
required the court to "conduct some type of inquiry." Kennedy contends
State v. Rojas, 177 Ariz. 454 (App. 1993), and State v. Miller, 178 Ariz. 555

2      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                      3
                            STATE v. KENNEDY
                            Decision of the Court

(1994), hold that the court must conduct such an inquiry when a juror's
partiality is questioned. Kennedy's reliance on those cases, however, is
misplaced. In Rojas, before the jury retired to deliberate, a juror gave the
bailiff a personal note expressing sympathy, along with a twenty-dollar bill,
to pass on to a victim. 177 Ariz. at 456, 458-59. This court held the superior
court abused its discretion by waiting until after the jury returned its verdict
to confront the juror about the note, and then by asking him leading
questions in response to which the juror affirmed he had not firmly made
up his mind about the defendant's guilt before deliberations began. Those
circumstances "cast an irrevocable cloud over the jury's fairness and
impartiality." Id. at 459 (quoting State v. Reynolds, 11 Ariz. App. 532, 535
(1970)). In Miller, an alternate juror dismissed just before deliberations
began left a note for a member of the jury, saying something to the effect
that the defendant was guilty. 178 Ariz. at 557. In the face of such an act of
juror tampering about an issue of guilt, our supreme court held the superior
court should have taken evidence to determine whether the note affected
the jury's deliberation. Id.

¶8               The incident here falls far short of the circumstances in Rojas
and Miller. Although a juror's fixed opinion about a defendant's guilt is
grounds for disqualification, Rojas, 177 Ariz. at 458, the question the juror
asked here (whether Kennedy was bored) did not indicate that the juror had
a fixed opinion that Kennedy was guilty. Instead, the question only related
to the juror's observations of Kennedy's behavior at trial. It goes without
saying that jurors closely watch a defendant's demeanor during trial. See
Payne, 233 Ariz. at 515, ¶ 131 (although prosecutor should not draw
attention to defendant's affect in courtroom, defendant's demeanor is on
display for the jury); United States v. Mendoza, 522 F.3d 482, 491 (5th Cir.
2008) ("[I]t is inevitable that jurors will observe a defendant at counsel table
during the course of a trial. . . . This is a natural consequence of a
defendant's decision to exercise his right to be present at trial."). The juror's
note did not hint at any discussions with other jurors about Kennedy's
affect or about whether he was guilty. Nor did the court read the juror's
question aloud in the presence of the other jurors.

¶9            A court's response to a threat of juror bias need only be
"commensurate with the severity of the threat posed." Miller, 178 Ariz. at
557 (quoting United States v. Thomas, 463 F.2d 1061, 1063 (7th Cir. 1972)). In
such a situation, the superior court has discretion to consider, among other
things, whether questioning the jury is likely to escalate the issue, thereby
creating the possibility of bias where none otherwise would have existed.
Under these circumstances, the superior court did not abuse its discretion
when it denied the motion to strike without questioning the jury.


                                       4
                           STATE v. KENNEDY
                           Decision of the Court

B.     Jury Instruction on Concealment of Evidence.

¶10           Kennedy also argues the court erred when it instructed the
jury on concealment of evidence. He contends the instruction was
improper because the evidence did not show that he attempted to hide or
conceal the landline phone or the cell phone. We review the superior court's
decision on whether to give a requested jury instruction for an abuse of
discretion. State v. Dann, 220 Ariz. 351, 363-64, ¶ 51 (2009).

¶11            An instruction on concealment of evidence is appropriate if
the evidence supports the inference that "the accused utilized the element
of concealment or attempted concealment." State v. Smith, 113 Ariz. 298, 300
(1976). At trial, defense counsel objected to the proposed jury instruction
on flight or concealment, contending that Kennedy never ran away, hid or
concealed evidence. The State conceded that the flight instruction was
irrelevant but argued that Kennedy "took away two phones in order to
conceal the whole incident. . . . [H]e tried to conceal the entirety of this
incident by preventing it to be reported to the police." The court modified
the instruction so as not to refer to flight but retained the concealment
portion, reasoning there was "plenty of testimony about [concealment] with
the phone being ripped out of the wall." The court instructed the jury 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 hiding or concealing evidence,
       together with all the other evidence in the case. Hiding or
       concealing evidence after a crime has been committed does
       not by itself prove guilt.

¶12            The court did not abuse its discretion in instructing the jury
on concealment. The State presented sufficient evidence for the jury to infer
that Kennedy attempted to conceal evidence of the assault by preventing
the victim from calling the police. One of the responding officers testified
Kennedy admitted he took both phones while the victim was attempting to
call 9-1-1. Another officer testified that within fifteen minutes of the
officer's arrival at the home, the redness on the victim's neck and throat had
faded. Additionally, a sexual assault nurse testified that redness caused by
pressure fades over time and can last from minutes to hours. Thus, the jury
could infer that Kennedy attempted to conceal evidence of the assault by
preventing the victim from calling the police.




                                      5
                         STATE v. KENNEDY
                         Decision of the Court

                           CONCLUSION

¶13          For the foregoing reasons, we affirm Kennedy's convictions
and resulting sentences.




                                :ama




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