                          NOTICE: NOT FOR PUBLICATION.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.

                      JOSELUIS MARQUEZ, Appellant.

                             No. 1 CA-CR 12-0809
                              FILED 06-03-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2010–164186–001
               The Honorable Edward W. Bassett, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
                          STATE v. MARQUEZ
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Michael J. Brown joined.


CATTANI, Judge:

¶1            Joseluis Marquez appeals his convictions and sentences for
first-degree felony murder and robbery. For reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             On May 26, 2010, Marquez and four other people drove
from Phoenix to Tempe in Marquez’s rented car “trying to find a way to
make some money.” At about 2:00 a.m., Marquez pulled up in front of a
restaurant on Apache Boulevard in Tempe, across from Arizona State
University. Marquez and the passengers in his car noticed a woman and
called out to her. When the woman approached the driver’s side door of
the car and began speaking to Marquez, he grabbed her shoulder bag
through the car window and sped away while she was still entangled in
the strap, causing her fall to the pavement. The woman died from the
blunt force trauma to her head. She had multiple facial and skull
fractures, consistent with being dragged by a car and striking her head on
the roadway. At trial, all four of the passengers in the vehicle testified
that they either saw Marquez snatch the purse, or saw him with the purse
shortly after he sped away from the scene.

¶3             The State also presented evidence regarding a similar purse-
snatching incident the previous day in which one of the same passengers
in the car grabbed a different victim’s purse while Marquez drove away.
The victim in that incident testified that someone riding in the car grabbed
her purse as the driver sped away, which forced her to let go of her purse
or be dragged down the street. Another witness identified Marquez and
the passenger as the persons who had sold him a cell phone that belonged
to the victim.

¶4          Marquez did not testify at trial, but he presented testimony
from someone who claimed to have been in jail with an inmate who
admitted committing the crime. Police officers had identified the inmate



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                           STATE v. MARQUEZ
                           Decision of the Court

early on in their investigation as a suspect because he had been in Tempe
around the time of the incident driving a car that matched the general
description given by eyewitnesses. But there was no other evidence
linking that car to this incident.

¶5             The jury convicted Marquez of the charged offenses, and the
superior court sentenced him to two and one-half years in prison for the
robbery conviction, to be served concurrently with a life term with
eligibility for parole for the first-degree murder conviction. Marquez
timely appealed, and this court has jurisdiction under Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A).

                              DISCUSSION

¶6            Marquez argues that the superior court abused its discretion
by admitting evidence that he had participated in the earlier purse-
snatching incident, urging that the evidence failed to show that he was an
accomplice and that the evidence was not offered for a proper purpose.
He also argues that the court abused its discretion by instructing the jury
regarding “flight or concealment.”

I.    Other Act Evidence.

¶7            Before admitting evidence of an act under Rule 404(b) of the
Arizona Rules of Criminal Procedure, the superior court “must conclude
that (1) the state has proved by clear and convincing evidence that the
defendant committed the alleged [] act; (2) the state is offering the
evidence for a proper purpose; and (3) its probative value is not
outweighed by the potential for unfair prejudice.” State v. Vigil, 195 Ariz.
189, 191, ¶ 14, 986 P.2d 222, 224 (App. 1999). Here, the superior court
found that the State proved by clear and convincing evidence that the
other act had occurred; that the other act was admissible to establish
Marquez’s culpable mental state at the time of the charged incident and,
in the event it became an issue at trial, to prove Marquez’s identity; and
that the evidence was not unfairly prejudicial. The court ultimately
instructed the jury that it could only use this evidence to establish intent
and/or identity, and that it could not use this evidence to show Marquez’s
propensity to commit the charged offense. We review the superior court’s
ruling on the admission of evidence for abuse of discretion. State v. Garcia,
200 Ariz. 471, 475, ¶ 25, 28 P.3d 327, 331 (App. 2001).

¶8           We find no abuse of discretion here. First, the evidence at
the Rule 404(b) hearing demonstrated that Marquez participated in the
other purse snatching as an accomplice, by pulling his car alongside the


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                            STATE v. MARQUEZ
                            Decision of the Court

victim and then accelerating as the passenger in the car grabbed the
victim’s purse, forcing her to let go or be dragged alongside the car. A
police detective testified that Marquez and his passenger approached the
female victim at about 4 a.m. the day before the charged incident and
offered her a ride, and that Marquez “accelerated” as his passenger
grabbed the victim’s purse, causing her to be dragged alongside the car
until she let go. Marquez accompanied the passenger afterwards when he
sold the victim’s cell phone for $60. The detective further testified that the
passenger clearly identified Marquez as being involved in the purse
snatching. Thus, the court did not err by concluding that the State had
offered clear and convincing evidence that Marquez committed the other
act.

¶9            Marquez’s argument that the other act was not offered for a
proper purpose also fails. Evidence of other acts is not admissible to
prove character “to show action in conformity therewith,” but it may be
admissible for other purposes, such as proof of intent or identity. Ariz. R.
Evid. 404(b). “Evidence relevant for any purpose other than showing
propensities to act in a certain way remains admissible.” State v. Connor,
215 Ariz. 553, 563, ¶ 32, 161 P.3d 596, 606 (App. 2007). Prior to the court’s
decision to admit evidence of the other purse snatching, Marquez listed
among his defenses mere presence, accident, no criminal intent, mistaken
identification, and insufficiency of evidence. Marquez never withdrew
these defenses, and reiterated them in a supplemental disclosure one
month before trial, when he added a third-party culpability defense.
Evidence that Marquez had participated in a similar purse snatching one
day earlier was thus relevant to rebut the anticipated defenses, as well as
the actual defenses, specifically to demonstrate Marquez’s intent to rob
the victim of her purse, see A.R.S. § 13-1902(A), and to show his identity as
the perpetrator.

¶10            Evidence is admissible to prove identity under Rule 404(b) if
the behavior of the accused on different occasions is “so unusual and
distinctive as to be like a signature.” State v. Stuard, 176 Ariz. 589, 597, 863
P.2d 891, 889 (1993) (citation omitted). In this case, as the court found,
there were striking similarities between the purse snatching the previous
day and the charged offense: both occurred in the early morning hours,
both involved luring a female victim to the same car, both involved
grabbing the female’s purse through a car window and speeding off,
forcing the victim to surrender her purse or be dragged alongside the
vehicle, and both involved Marquez and a friend. Accordingly, the court
did not abuse its discretion by finding the other act admissible to show
Marquez’s identity and intent.


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                             STATE v. MARQUEZ
                             Decision of the Court

II.    Flight Instruction.

¶11           Marquez argues that the superior court abused its discretion
by giving the following flight/concealment instruction over his objection:

       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 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.

We review the decision to give this type of instruction for abuse of
discretion. State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App.
2003).

¶12           We find no such abuse of discretion in this case. A flight or
concealment instruction is proper when “the defendant’s conduct
manifests a consciousness of guilt.” State v. Speers, 209 Ariz. 125, 132, ¶ 27,
98 P.3d 560, 567 (App. 2004) (holding that flight instruction not warranted
based only on presence of a passport and a flight itinerary printout in the
defendant’s backpack). “The decision whether such an instruction should
be given ‘is determined by the facts in a particular case.’” Id. (citation
omitted). Here, the State presented evidence that after the purse
snatching, Marquez hurriedly left the parking lot, disposed of the victim’s
purse, and gave the car to his cousin. Thus, the superior court reasonably
determined that Marquez’s conduct after the crime supported an
inference of consciousness of guilt, and the court did not abuse its
discretion by giving the instruction.

                               CONCLUSION

¶13          For the foregoing reasons, we affirm Marquez’s convictions
and sentences.




                                      :gsh



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