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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    VICTORIA ANN LISTER, Appellant.

                             No. 1 CA-CR 17-0394
                               FILED 5-8-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR 2016-005283-002
                  The Honorable Justin Beresky, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
                             STATE v. LISTER
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Paul J. McMurdie joined.


C A M P B E L L, Judge:

               Appellant Victoria Ann Lister appeals her conviction and
sentence for hindering prosecution in the first degree, a class 3 felony. Lister
argues the court committed fundamental error by failing to answer a purely
legal question asked by the jury during deliberations. Because we find no
error, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

              In the evening of May 9, 2016, the body of an adult male was
found on the side of the road in Pinal County. Upon arrival, law
enforcement determined the victim had been murdered. Two suspects were
identified shortly thereafter, one of which was Chad Jenkins. A press
release was provided to various media outlets asking for the public’s help
in the apprehension of the suspects. The Pinal County Sheriff’s Office
received information that Jenkins may have been hiding at the home of
Sierra Fessler, his girlfriend. Two days after the murder, Jenkins was
located and arrested at Fessler’s residence.

               Detective Shawn Wilson interviewed Fessler and learned that
Jenkins had stayed at the home of Lister on the night after the murder.
Detective Wilson went to the home of Lister and conducted an interview.
Lister stated she “didn’t know why” the police would be at her home.

              Detective Wilson then asked Lister about the location of a cell
phone that was relevant to the murder investigation. Lister denied having
any knowledge of the phone. The Detective then put Fessler on the phone
with Lister. Fessler told Lister that the cell phone was in Lister’s bedroom.
At that point, Lister retrieved the phone and admitted to Detective Wilson
that both Fessler and Jenkins had been at her home on May 10. She admitted
that she spoke to Jenkins about “how the murder occurred” and other
details about that night.

           After leaving Lister’s home, Detective Wilson discovered the
SIM card was missing from the cell phone. Roughly an hour later, Lister


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                           Decision of the Court

called Detective Wilson and told him she found the phone’s SIM card.
When Detective Wilson tried to access the data on the SIM card, he
discovered that it had been wiped and contained no retrievable
information.

               Lister was indicted on one count of hindering prosecution in
the first degree, a class 3 felony, under Arizona Revised Statutes (“A.R.S.”)
sections 13-2510 and 13-2512. The State subsequently filed a motion to
amend the indictment, clarifying that Lister was charged under subsections
1 and 3 of A.R.S. § 13-2510. Lister did not object and the trial court granted
the motion to amend the indictment.

              At trial, Lister testified that Jenkins “just showed up” at her
home around 2:00 p.m. on the day after the murder. She explained she had
been friends with Jenkins for about four years and it was not unusual for
him to stay overnight at her home. Later the same evening, Jenkins’
girlfriend Fessler showed up and also stayed overnight at Lister’s residence.
The next morning, Fessler went to work while Jenkins and Lister remained
in the house. At some point during the day, Jenkins told Lister what had
happened and that he needed to turn himself in to the police. When Fessler
returned from work, she and Lister both spoke to Jenkins and “he agreed
that he was going to turn himself in.” The couple left the house together
and Lister went with her mother to Prescott. When she returned home, she
saw a report on the news about Jenkins and the murder. That night the
detectives knocked on her door at about 2:00 a.m. to question her about
Jenkins and the murder.

             After the close of evidence, the court instructed the jury on the
crime of hindering prosecution. Specifically, the court instructed that the
crime of hindering prosecution in the first degree requires proof that the
defendant:

              1. Intended to hinder the apprehension, prosecution,
                 conviction, or punishment of another for any felony; and

              2. Knew or had reason to know that the felony involved
                 murder; and

              3. Knowingly rendered assistance to the other person.

The court further defined “[r]ender[ing] assistance to another person,”
stating:

       A person renders assistance to another person by knowingly:


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                              Decision of the Court

       1. Harboring or concealing the other person; or

       2. Providing the other person with money, transportation, a
       weapon, a disguise or other similar means of avoiding
       discovery, apprehension, prosecution or conviction.

             During deliberations, the jury sent a written question to the
judge, asking the court:

       We would like clarification on “Rendered assistance to
       another person” Pg. 8 “harboring or concealing the other
       person.” [I]s this a stand alone statement or in reference to
       avoiding [d]iscovery, apprehension, prosecution or
       conviction[?]

Without objection from defense counsel, the trial court answered:

       Rely on the instructions as given. As you determine the facts,
       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.

              The jury later returned a verdict of guilty and Lister was
sentenced to two years of supervised probation.

                                 DISCUSSION

               Lister argues the superior court committed fundamental error
by failing to answer a purely legal question and permitting her case to be
decided by a jury with a faulty understanding of the charged offense. We
disagree.

                 When the defendant fails to object to an alleged error by the
trial court, we review for fundamental error. State v. Henderson, 210 Ariz.
561, 567, ¶ 19 (2005). The defendant further bears the burden of establishing
both that fundamental error occurred and the error caused him prejudice.
Id. at 568, ¶ 22. The defendant must first prove that error occurred, and
second, that the error was fundamental. Id. at ¶¶ 23-24. An error is
fundamental if: (1) the “error complained of goes to the foundation” of the
case; (2) the error “takes away a right that is essential to his defense”; and
(3) the error is of “such magnitude that he could not have received a fair
trial.” Id. at 568, ¶ 24; see also State v. King, 158 Ariz. 419, 424 (1988). Finally,
if the defendant shows that a fundamental error occurred, he must then




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                              Decision of the Court

demonstrate that the error caused him prejudice. Henderson, 210 Ariz. at
568, ¶ 26.

               Here, the trial court was not required to provide a clarifying
instruction. When a deliberating jury is confused about a legal issue and
“the resolution of the question is not apparent from an earlier instruction,
the trial judge has a responsibility to give the jury the required guidance by
a lucid statement of the relevant legal criteria.” State v. Ramirez, 178 Ariz.
116, 126 (1994). Such guidance, however, and the decision to give further
instruction, is within the trial court’s discretion. Id.; see also State v. Ruiz, 236
Ariz. 317, 324, ¶ 25 (2014). Hence, when a jury questions a matter on which
it has already received adequate instruction, the trial court may, in its
discretion, “refuse to answer, or may refer the jury to the earlier
instruction.” Ramirez, 178 Ariz. at 126 (citation omitted).

              Here, the court properly instructed the jury on the issue of
“render[ed] assistance to another person.” See supra ¶ 8. The instruction
repeated verbatim the statutory definitions of “render[ing] assistance.” See
A.R.S. § 13-2510. Lister contends that the jury confused the two methods of
rendering assistance and how to apply the statute because they asked
whether the methods for rendering assistance were “stand alone” or
connected. The court had the discretion to either instruct the jury to refer
back to the instruction or refuse to answer altogether. Ramirez, 178 Ariz. at
126. The court was therefore justified in instructing the jury to refer back to
the instruction. Id.

              Additionally, the court asked the defense whether it would
prefer to “send back the answer that says, ‘[r]ely on the instructions that
you have,’” or to provide further argument regarding the instruction. The
defense responded, “I would ask just to send it back.”

               Furthermore, hindering prosecution is an “alternative
means” statute, as Lister acknowledges. Alternative means statutes
“identify a single crime and provide more than one means of committing
the crime.” State v. West, 238 Ariz. 482, 489, ¶ 19 (App. 2015) (citation
omitted). Here, the State relied exclusively on the method of “[h]arboring
or concealing the other person” to meet the requirements of the statute. This
is evidenced in the State’s closing argument: “[W]e’re actually done the
minute she lets a known, wanted murderer stay at her house, period. Full
stop. That is a crime under the law.” See A.R.S. § 13-2510(1). Given that the
statute is an “alternative means” statute, the State could have proven any
one of the six methods provided to substantiate the rendering of assistance
requirement. See A.R.S. § 13-2510; see also State v. Garcia, 235 Ariz. 627, 630,


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                             STATE v. LISTER
                            Decision of the Court

¶ 8 (App. 2014) (explaining that the subsections in such a statute do not
refer to separate crimes but rather describe different ways of committing
the same single offense). Accordingly, the State simply had to prove she
had rendered assistance to Jenkins by either knowingly “harboring” Jenkins
or “providing . . . means of avoiding . . . apprehension.” See A.R.S. § 13-2510.

              Here, the State only argued that Lister committed hindering
prosecution by harboring Jenkins after he admitted he murdered the victim.
Because the trial court did not err by not issuing a clarifying instruction, we
need not continue the analysis of whether the alleged error was
fundamental and prejudicial.1

                               CONCLUSION

              For the foregoing reasons, we affirm Lister’s conviction and
sentence.




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




      Further, because no error occurred, we need not address the State’s
       1

argument that the alleged error was invited error.


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