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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       JOSEPH E. DUSTIN, Appellant.

                             No. 1 CA-CR 18-0399
                              FILED 8-27-2019


           Appeal from the Superior Court in Yavapai County
                        No. P1300CR201701095
           The Honorable Patricia A. Trebesch, Judge, Retired

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

M. Alex Harris PC, Chino Valley
By M. Alex Harris
Counsel for Appellant
                             STATE v. DUSTIN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


B R O W N, Judge:

¶1             Joseph E. Dustin appeals his conviction and sentence for
unlawful flight from a pursuing law enforcement vehicle. He argues the
superior court fundamentally erred in instructing the jury and the
prosecutor engaged in misconduct during closing arguments. Dustin also
challenges the court’s sentencing order. Because only the sentencing issues
merit publication, we address them in a separate opinion. See Ariz. R. Sup.
Ct. 111(h); Ariz. R. Crim. P. 31.19(f). For the following reasons, and those
set forth in the opinion, we affirm Dustin’s conviction and we affirm his
sentence as modified.

                              BACKGROUND

¶2              We view the facts in the light most favorable to upholding the
verdict and resolve all reasonable inferences against Dustin. State v.
Valencia, 186 Ariz. 493, 495 (App. 1996). While on patrol, Officer Justin
Smith “r[a]n a license plate” on a Dodge Durango parked in front of a house
and learned the Durango was not insured and thus could not lawfully be
operated. See A.R.S. § 28-4135. Smith waited in his fully marked patrol
vehicle a short distance away until a man exited the house, entered the
Durango, and drove away. Smith followed and activated his patrol car’s
lights to initiate a traffic stop, but the Durango did not pull over. Smith also
observed the driver “pour something out of the driver’s side window.”
Smith then activated the siren, but the driver continued driving away.
Consistent with police department policy, Smith ended the pursuit but was
later able to contact Dustin, who admitted he drove the Durango during the
pursuit.

¶3            The State indicted Dustin on one count of unlawful flight,
alleging he “willfully fled or attempted to elude a pursuing official law
enforcement vehicle which was being operated with proper emergency
equipment,” a class 5 felony. At trial, Dustin testified that even though he
noticed a police car following him with its lights and siren on, he “thought
it would be best to just go home and be safe. Then the vehicle would be


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                             STATE v. DUSTIN
                            Decision of the Court

safe and not be towed.” The jury found Dustin guilty as charged, and the
superior court sentenced him to a four-year prison term. Dustin timely
appealed.

                                DISCUSSION

              A.      Jury Instructions

¶4              Dustin argues the superior court fundamentally erred
because the court’s oral recitation of the final jury instructions (1) referred
to inapplicable matters and (2) failed to instruct the jury on the elements of
the charged offense. Because Dustin failed to object at trial to the court’s
oral recitation of the jury instructions, we review only for fundamental
error. State v. Bass, 198 Ariz. 571, 575, ¶ 9 (2000). To prevail on fundamental
error review, a defendant must establish error that (1) “went to the
foundation of the case,” (2) “took from the defendant a right essential to his
defense,” or (3) “was so egregious that he could not possibly have received
a fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). The first two
prongs, if found, require a subsequent finding of prejudice; the third is
inherently prejudicial. Id. Error in a jury instruction is reversible only if,
taken as a whole, the instruction supports a reasonable presumption that
the jury was misled by the erroneous instruction. State v. Gallegos, 178 Ariz.
1, 10 (1994).

¶5             The record reflects that when orally reciting the final
instructions, the superior court erroneously told the jury Dustin did not
testify and he was absent from trial. The record also shows the court did
not orally instruct the jury on the elements of unlawful flight. However,
based on the record as a whole, we find no fundamental error. The
transcript confirms that the jurors received copies of the correct written
instructions and that both the prosecutor and defense counsel relied on the
written instructions during closing arguments. Unlike the court’s oral
recitation, the written instructions did not inaccurately refer to Dustin as
being absent from trial or failing to testify; instead, the written instructions
properly informed the jury to evaluate Dustin’s testimony the same as it
would for any other witness. The jurors’ written instructions also correctly
stated the elements of unlawful flight, including pertinent definitions.

¶6            Dustin does not identify anything in the record showing jury
confusion or that the jury relied upon the court’s incorrect and incomplete
oral instructions. To the contrary, the court orally admonished the jurors
to review and discuss the written instructions during deliberations. Thus,
although the court erred in its oral recitation of the instructions, “we do not



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                             STATE v. DUSTIN
                            Decision of the Court

presume juror confusion in the absence of supporting evidence, and we
cannot find fundamental error where the jury benefitted from a sufficiently
clear written instruction.” Bass, 198 Ariz. at 576–77, ¶ 18 (“[T]he jurors’
confusion [from the erroneous oral jury instructions], if any, would have
been dispelled by the error-free written instruction which correctly advised
them of their charge.”). Nor can Dustin establish prejudice. See State v.
Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013) (“[A defendant] must
affirmatively ‘prove prejudice’ and may not rely upon ‘speculation’ to carry
his burden [of establishing reversible fundamental error].”).

¶7             As a separate challenge to the jury instructions, Dustin briefly
suggests the superior court should have sustained his objection to the
State’s request to include a flight instruction. “We review the trial court’s
decision to give or refuse a jury instruction for an abuse of discretion.” State
v. Hurley, 197 Ariz. 400, 402, ¶ 9 (App. 2000). Because Dustin objected at
trial, to the extent the instruction was improper, we review for harmless
error. See State v. Solis, 236 Ariz. 285, 287, ¶ 12 (App. 2014).

¶8            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 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.

In overruling Dustin’s objection, the court reasoned that the jury could
properly consider Dustin’s reasons for running or failing to stop the
Durango based on the evidence presented.

¶9            “A flight instruction should only be given if the State presents
evidence of flight after a crime from which jurors can infer a defendant’s
consciousness of guilt.” Solis, 236 Ariz. at 286, ¶ 7. When a defendant
conceals either himself or the evidence of a crime, his actions might display
a consciousness of guilt from which a jury may infer that he is actually
guilty. See State v. Edwards, 136 Ariz. 177, 184 (1983); State v. Hunter, 136
Ariz. 45, 48–49 (1983). A flight instruction is thus warranted if the evidence
shows the defendant’s flight was open, or if it supports “the inference that
the [defendant] utilized the element of concealment or attempted
concealment.” State v. Smith, 113 Ariz. 298, 300 (1976).



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                            STATE v. DUSTIN
                           Decision of the Court

¶10           Apparently referring to the liquid Officer Smith saw the
driver of the Durango pour out the window during the pursuit, Dustin
seems to suggest the superior court erred in giving the flight instruction
because the State used it to “imply something illegal was in the liquid and
[Dustin] was concealing a crime.” As noted below, infra ¶ 20, the State
could reasonably suggest to the jury that Dustin failed to pull over during
the pursuit because he did not want police to discover whatever it was that
he poured out the window. Moreover, as noted, a flight instruction is
appropriate if there is evidence of either running away or concealment. See
Smith, 113 Ariz. at 300; Solis, 236 Ariz. at 286–87, ¶ 7. The evidence shows
that Dustin fled from Smith after he became aware Smith wanted him to
stop. Dustin continued to flee, which supports giving the flight instruction,
and on appeal he cites no authority to the contrary.

¶11            Even assuming the instruction was improperly given, Dustin
is not entitled to a new trial. An error is harmless if the State demonstrates
“beyond a reasonable doubt that the error did not contribute to or affect the
verdict or sentence.” State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005); see
also State v. Dann, 205 Ariz. 557, 565–66, ¶ 18 (2003) (stating harmless error
analysis is applied to erroneous jury instructions). The State may meet its
burden if “the evidence against a defendant is so overwhelming that any
reasonable jury could only have reached one conclusion.” State v. Anthony,
218 Ariz. 439, 446, ¶ 41 (2008).

¶12            To meet its burden of proving the charge of unlawful flight,
the State was required to establish beyond a reasonable doubt that Dustin
willfully fled or attempted to elude a pursuing official law enforcement
vehicle that was appropriately marked. See A.R.S. § 28-622.01. In addition
to Officer Smith’s testimony about the pursuit, Dustin confirmed at trial he
was driving the Durango and saw a police officer following him with the
police car’s lights activated. Dustin further testified that once the police
officer turned on his siren, he understood the officer wanted him to stop,
but he continued driving. The State therefore presented overwhelming
evidence to establish every element of the offense beyond a reasonable
doubt. See Dann, 205 Ariz. at 565, ¶ 18.

              B.     Prosecutorial Misconduct

¶13           Dustin next argues the prosecutor engaged in misconduct
during closing argument by “vouching,” “verbally abusi[ng]” defense
counsel, and accusing defense counsel of “misstating the rules and law.”
Part of the transcript Dustin cites to includes a bench conference during
closing arguments. The alleged impropriety that occurred during the bench


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                             STATE v. DUSTIN
                            Decision of the Court

conference, however, was outside the jury’s presence and therefore did not
deny Dustin a fair trial. See State v. Armstrong, 208 Ariz. 345, 358, ¶ 64 (2004)
(concluding that the prosecutor’s “acrimonious and inappropriate
remarks” occurred outside the jury’s presence and therefore did not violate
defendant’s “rights essential to [his] defense”). In any event, because
Dustin did not object to the purported misconduct at trial, he is not entitled
to relief absent fundamental error. See State v. Roscoe, 184 Ariz. 484, 497
(1996).

¶14             “Prosecutorial misconduct ‘is not merely the result of legal
error, negligence, mistake, or insignificant impropriety, but, taken as a
whole, amounts to intentional conduct which the prosecutor knows to be
improper and prejudicial, and which he pursues for any improper purpose
with indifference to a significant resulting danger of mistrial.’” State v.
Aguilar, 217 Ariz. 235, 238–39, ¶ 11 (App. 2007) (quoting Pool v. Super. Ct.,
139 Ariz. 98, 108–09 (1984)). A conviction will be reversed for prosecutorial
misconduct “if (1) the prosecutor committed misconduct and (2) a
reasonable likelihood exists that the prosecutor’s misconduct could have
affected the verdict.” State v. Benson, 232 Ariz. 452, 463, ¶ 40 (2013). A
defendant must demonstrate that the “prosecutor’s misconduct ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.’” State v. Hughes, 193 Ariz. 72, 79, ¶ 26 (1998) (citation omitted).

¶15           Dustin first complains that, during rebuttal, the prosecutor
referred to defense counsel’s closing argument as “snidely.” Because the
alleged misconduct occurred during rebuttal, we view the prosecutor’s
statement in the context of Dustin’s closing argument. See State v. Kerekes,
138 Ariz. 235, 239 (App. 1983).

¶16           Defense counsel’s closing argument concluded as follows:

       [DEFENSE COUNSEL]: You can go back there and do what
       you think is right. If you think the state’s version of the
       elements is what’s right, conviction is obvious. If you think
       the defendant, reasons he’s given, is appropriate and right,
       then you got a right to make a verdict of not guilty.

       [PROSECUTOR]: Objection, Your Honor. Misstatement of the
       law.

       THE COURT: Sustained.

       [PROSECUTOR]: Ask that be stricken and the jury not to
       consider it.


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                           STATE v. DUSTIN
                          Decision of the Court

      THE COURT: So ordered.

      [DEFENSE COUNSEL]: Well, with that objection is that [sic]
      you have no option but to do exactly what the state says, that’s
      wrong.

      [PROSECUTOR]: Your Honor, objection. Move to strike.

      THE COURT: Give me a moment. I’m going to strike that
      reference. So ordered.

      [DEFENSE COUNSEL]: Apparently you have no choice about
      the verdict, but I will argue anyway. You can determine facts.
      You can determine which evidence to believe. You can make
      the verdict that you want to make. I believe the verdict should
      be not guilty. Thank you.

¶17          The prosecutor concluded his rebuttal argument as follows:

      [Defense counsel] at the very end kind of snidely commenting
      on his comments getting struck and, basically, given the
      evidence in this case, [suggested] you have to find the
      defendant guilty.

      Not suggest [sic] -- you don’t have [to do] anything. You are
      the judge of the facts and you can decide. But given the
      evidence in this case -- I don’t believe the idea of open and
      shut -- you should find the defendant guilty because he
      committed the crime. And, frankly, the evidence is clear as to
      every single element. I’d ask that you do so.

¶18           Although a prosecutor should not impugn opposing
counsel’s “integrity or honesty” during closing arguments, Hughes, 193
Ariz. at 86, ¶ 59, we do not find that the prosecutor’s “snidely” comment
here fell beyond the scope of permissible argument, State v. Gonzales, 105
Ariz. 434, 437 (1970) (“[E]xcessive and emotional language is the bread and
butter weapon of counsel’s forensic arsenal, limited by the principle that
attorneys are not permitted to introduce or comment upon evidence which
has not previously been offered and placed before the jury.”). The isolated
comment was unnecessary, but it was not so unfair as to deny Dustin due
process.

¶19          Dustin next contends the prosecutor engaged in vouching by
stating, “I don’t believe the idea of open and shut[.]” The comment,


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                            STATE v. DUSTIN
                           Decision of the Court

however, was not vouching. See State v. Vincent, 159 Ariz. 418, 423 (1989)
(explaining that prosecutorial vouching occurs either “(1) where the
prosecutor places the prestige of the government behind its witness; [or] (2)
where the prosecutor suggests that information not presented to the jury
supports the witness’s testimony”). Defense counsel told the jury, “[f]rom
what’s been presented this is an open and shut situation.” Again, the
prosecutor was fairly responding to defense counsel’s closing argument.
See State v. Alvarez, 145 Ariz. 370, 373 (1985) (explaining that comments by
the prosecution refuting a defendant’s theory are proper because they “are
a fair rebuttal to areas opened by the defense”).

¶20              Finally, Dustin asserts the prosecutor improperly suggested
the liquid thrown from the Durango contained contraband because there
was no supporting evidence for the prosecutor’s suggestion. Dustin bases
his assertion on Officer Smith’s testimony that although he observed a wet
spot where the liquid was thrown, he was unable to test anything and did
not know what the liquid was. The prosecutor’s statement was not
improper. From the evidence presented, a reasonable inference could be
drawn about the liquid that might explain, at least partially, why Dustin
did not stop even though he knew Officer Smith was pursuing him. See
State v. Bible, 175 Ariz. 549, 602 (1993) (“[D]uring closing arguments counsel
may summarize the evidence, make submittals to the jury, urge the jury to
draw reasonable inferences from the evidence, and suggest ultimate
conclusions.”); Hunter, 136 Ariz. at 50 (“[T]he fact that the defendant had
some motive, good or bad, for committing the crime is one of the
circumstances which, together with other circumstances, may lead the fact-
finder to conclude that he did in fact commit the crime.”). In sum, no
misconduct occurred.




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                          STATE v. DUSTIN
                         Decision of the Court

                            CONCLUSION

¶21          We affirm Dustin’s conviction. Based on the opinion filed
herewith, we affirm his sentence as modified.




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




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