                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

               VILAYKHONE BOUTSISAVANH, Appellant.

                             No. 1 CA-CR 13-0859
                               FILED 12-09-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-115211-001
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

Maricopa County Public Defender, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence F. Winthrop joined.
                        STATE v. BOUTSISVANH
                          Decision of the Court

G E M M I L L, Judge:

¶1            Defendant Vilaykhone Boutsisavanh appeals his conviction
and sentence for aggravated assault, a class 3 dangerous felony.
Boutsisavanh contends that the trial court erred in giving the jury an
instruction on flight or concealment. For the reasons that follow, we affirm.

                             BACKGROUND

¶2             The applicable standard of review requires that we view the
facts in the light most favorable to upholding the jury’s verdict. State v.
Mitchell, 204 Ariz. 216, 217 ¶ 3, 62 P.3d 616, 617 (App. 2003). On February
18, 2013, Boutsisavanh went to LP’s house, knocked on the door, and asked
for LP’s brothers. Boutsisavanh had been at the house at least five times
before, asking for LP’s brothers in order to collect money they owed him
for drugs. During the February 18 visit, Boutsisavanh placed his foot in the
door to prevent LP from closing it and, when LP informed him that her
brothers were not home, motioned for one of two men he arrived with to
approach from their car. The man came up to the house and handed
Boutsisavanh a gun.

¶3            Boutsisavanh pointed the gun about six inches away from
LP’s face, demanding that she get her brothers on the phone or else she
“would be the reason” that “something happens” to her brothers. After
holding the gun to LP’s face for approximately five seconds, the gun was
returned to the other man and placed in a holster.

¶4           LP successfully reached one brother, but failed to convince
him to come to the house. She was unable to reach her other brother by
phone. LP then gave Boutsisavanh her brother’s phone number and
Boutsisavanh called him. After talking with LP’s brother on the phone,
Boutsisavanh walked to the car while wishing luck to her family and telling
her he did not know what was going to happen next.

¶5           After the incident, LP called the police from her sister’s
nearby apartment and gave her statement in an interview with Officer
Moody. Based on LP’s description of the assailant, Officer Moody arranged
a photo lineup the next day, February 19, and LP was able to identify
Boutsisavanh. Despite this identification and despite Boutsisavanh




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                         STATE v. BOUTSISVANH
                           Decision of the Court

appearing at superior court on February 20,1 he was not apprehended until
April 2, 2013.

¶6            The State proceeded to trial against Boutsisavanh on the
charge of aggravated assault. When jury instructions were first addressed
during trial, defense counsel stated he did not submit any requested
instructions because he “looked over the ones that [the State] filed, and that
seems appropriate, with the exception I would think the last -- last page
looked like it was something more for penalty phase,” referring to an
instruction on release status. Before bringing in the jury at trial the
following day, the court questioned the State on the appropriateness of the
State’s requested flight instruction, despite the lack of objection by the
defense. The court stated it was confused about what facts support a flight
instruction, and in lieu of speculating, wanted to ask the State what the
supporting evidence was. The State pointed only to the facts that
Boutsisavanh went to the car after the incident, was driven off before police
arrived, and was not apprehended until two months later. The court then
verified that the State believed the sentence, “You may also consider the
Defendant’s reasons for running away, hiding, or concealing evidence,”
should remain in the instruction. When the court asked if defense counsel
was in agreement with leaving the sentence in, he responded “yes.”

¶7             The jury returned a guilty verdict and Boutsisavanh timely
appeals. This court has jurisdiction pursuant to the Arizona Constitution,
Article 6, section 9, and Arizona Revised Statutes sections 12-120.21(A)(1),
13-4031 and 13-4033.

                                ANALYSIS

¶8            Boutsisavanh argues that the trial court erred in giving the
jury instruction on flight, to which the State referred in closing argument.
That instruction provided:

       Flight or concealment: 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,
       hiding, or concealing evidence, together with all the other


1  Boutsisavanh appeared in court on February 20 for sentencing in an
unrelated matter. This fact was presented to the court at the Final Trial
Management Conference but was not mentioned in the presence of the jury
at trial.


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                         STATE v. BOUTSISVANH
                           Decision of the Court

       evidence in the case. You may also consider the Defendant’s
       reasons for running away, hiding, or concealing evidence.
       Running away, hiding, or concealing evidence after a crime
       has been committed does not by itself prove guilt.

¶9             Because Boutsisavanh failed to object to this instruction at
trial, our review is limited to fundamental error. See State v. Henderson, 210
Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); see also Ariz. R. Crim. P. 21.3
(“No party may assign as error on appeal the court’s giving . . . any
instruction . . . unless the party objects thereto before the jury retires to
consider its verdict . . . .”). To prevail under this standard of review, a
defendant must establish that fundamental error occurred and that the
error caused him prejudice. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at
607.

¶10             Instruction on flight is appropriate when a defendant’s
conduct manifests a consciousness of guilt. State v. Cutright, 196 Ariz. 567,
570, ¶ 12, 2 P.3d 567, 660 (App. 1999), overruled on other grounds by State v.
Miranda, 200 Ariz. 67, 22 P.3d 506 (2001). Whether to give a flight
instruction is dependent on the facts of a given case. Id. Merely leaving the
scene of a crime or engaging in travel does not warrant a flight instruction.
State v. Speers, 209 Ariz. 125, 132, ¶ 28, 98 P.3d 560, 567 (App. 2004). Because
Boutsisavanh did not flee from police pursuit, a flight instruction was
appropriate in this case only if one could “reasonably infer from the
evidence that the defendant left the scene in a manner which obviously
invites suspicion or announces guilt.” Id. (Citation omitted).

¶11           In the present case, Boutsisavanh walked away from the scene
of the crime and was then driven off without any noted expediency. This
evidence does not, in our view, support an inference that Boutsisavanh “left
the scene in a manner which obviously invites suspicion or announces
guilt” and does not justify giving the instruction. Boutsisavanh, however,
is unable to establish that any such error was fundamental or prejudicial.

¶12            Boutsisavanh claims that giving the instruction was
fundamental error and the instruction coupled with the State’s referral to
its evidence supporting flight prejudiced him. First, we do not find
fundamental error on this record based on the giving of the instruction or
the State’s argument in closing. See, e.g., State v. Moody, 208 Ariz. 424, 443,
¶ 49, 94 P.3d 1119, 1138 (2004) (holding that “fundamental error is ‘error of
such dimensions that it cannot be said it is possible for [a] defendant to have
had a fair trial.’” (citation omitted)). Even if the instruction had not been



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                         STATE v. BOUTSISVANH
                           Decision of the Court

given, the State would have been entitled to argue reasonable inferences
from the evidence regarding Boutsisavanh’s alleged flight. The giving of
the instruction did not deprive Boutsisavanh of a fair trial and did not
constitute fundamental error.

¶13           Second, Boutsisavanh has not demonstrated prejudice on this
record. The instruction was phrased permissively: the jury was told that
they “may” consider any evidence of flight or concealment and further
informed that the flight or concealing of evidence does not itself prove guilt.
Boutsisavanh’s claim that the “instruction greatly prejudiced him” is pure
speculation. “Speculative prejudice is insufficient under fundamental error
review.” State v. Martin, 225 Ariz. 162, 166, ¶ 15, 235 P.3d 1045, 1049 (App.
2010).

                              CONCLUSION

¶14          Because we conclude that no fundamental, prejudicial error
occurred by the giving of the flight instruction, we affirm Boutsisavanh’s
conviction and sentence.




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