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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               KELLY COLETTE DONALDSON, Appellant.

                             No. 1 CA-CR 17-0702
                               FILED 11-29-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-005322-002
              The Honorable Christopher A. Coury, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
                          STATE v. DONALDSON
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Kenton D. Jones and Judge David D. Weinzweig joined.


S W A N N, Judge:

¶1             Kelly Colette Donaldson appeals her conviction and
probation term for hindering prosecution in the first degree. She contends
that there is insufficient evidence to support the conviction. We hold that
substantial evidence supports her conviction, and we therefore affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            Late at night in March 2012, Donaldson and several guests
were in the master bedroom of her apartment while her 14-year-old
daughter slept in the bedroom across the hall. Donaldson’s guests included
Abel Hernandez—nicknamed “Stretch”—N.E., R.R., and A.P. Stretch and
N.E. began to argue in front of the others when Stretch pulled out multiple
guns, set them in front of him, and “play[ed] with them” in an apparent
attempt to intimidate N.E. One of the guns fired while Stretch was handling
it and the bullet struck A.P. in the head. The other guests left Donaldson’s
room immediately.

¶3           According to several neighbors and Donaldson’s daughter,
the gunshot and ensuing commotion occurred sometime between 2:00 and
2:30 a.m. Donaldson, the first to report the incident, called 9-1-1 at 2:47 a.m.

¶4           In the time between the gunshot and the 9-1-1 call, one
neighbor heard Donaldson arguing loudly with a man inside the
apartment. Donaldson’s daughter heard her yell “Stretch” inside the
apartment. Another neighbor saw Donaldson and R.R. whispering to each
other outside the apartment, with R.R. pacing anxiously and occasionally
walking toward the parking lot and back. Donaldson called the police once
R.R. left.

¶5            Donaldson told police that she was asleep during the incident
and did not know anyone was in the apartment except for her daughter.
After police asked her about Stretch, she told them that she knew a man
named “Strep” but did not know him well, that “Strep” was under six feet
tall, and that he may have tried to get into the apartment through her


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                          STATE v. DONALDSON
                            Decision of the Court

bedroom window that night but she did not think he ever got inside. When
alone together in a police station holding room, Donaldson’s daughter
asked her why she yelled “Stretch” during the incident. Donaldson
restated the question and warned her daughter not to say anything because
the room was being recorded.

¶6            The state charged Donaldson with one count of hindering
prosecution in the first degree, a class five felony under A.R.S. § 13-2512.
After a jury trial, she was convicted as charged, and the court imposed a
three-year probation term with a minimum of 90 days in jail. Donaldson
appeals.

                               DISCUSSION

¶7             Donaldson presents one issue on appeal—whether there was
sufficient evidence to support her conviction. We review the sufficiency of
the evidence de novo, State v. West, 226 Ariz. 559, 562, ¶ 15 (2011), viewing
the evidence in the light most favorable to sustaining the verdict, State v.
Girdler, 138 Ariz. 482, 488 (1983). The credibility of witnesses and the
weight given to their testimony are issues for the jury, not this court. State
v. Bustamante, 229 Ariz. 256, 258, ¶ 5 (App. 2012).

¶8             We will affirm if “substantial evidence” supports the jury’s
verdict. State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007). “Substantial evidence
is more than a mere scintilla and is such proof that ‘reasonable persons
could accept as adequate and sufficient to support a conclusion of [the]
defendant’s guilt beyond a reasonable doubt.’” State v. Mathers, 165 Ariz.
64, 67 (1990) (citation omitted). “To set aside a jury verdict for insufficient
evidence[,] it must clearly appear that upon no hypothesis whatever is there
sufficient evidence to support the conclusion reached by the jury.” State v.
Arredondo, 155 Ariz. 314, 316 (1987).

¶9             “A person commits hindering prosecution in the first degree
if, with the intent to hinder the apprehension, prosecution, conviction or
punishment of another for any felony, the person renders assistance to the
other person.” A.R.S. § 13-2512(A). A person “renders assistance to
another” by “knowingly . . . concealing the identity of the other person.”
A.R.S. § 13-2510(6). “Criminal intent, being a state of mind, is shown by
circumstantial evidence. [A d]efendant’s conduct and comments are
evidence of [her] state of mind.” State v. Bearup, 221 Ariz. 163, 167, ¶ 16
(2009) (citation omitted).

¶10         As a preliminary matter, the state was required to show that
Stretch committed a felony for which Donaldson could have hindered


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                         STATE v. DONALDSON
                           Decision of the Court

prosecution. Here, the court instructed the jury on five felonies that Stretch
may have committed, including aggravated assault, a class three felony
under A.R.S. §§ 13-1203(A)(1) and -1204(A)(2) and (E). The state presented
evidence that Stretch committed aggravated assault when he recklessly,
knowingly, or intentionally caused the gun to fire in Donaldson’s bedroom
and the bullet to strike A.P. in the head.

¶11            The state presented substantial evidence that Donaldson
knew Stretch’s identity and knew he caused the gun to fire that night,
despite her contrary statements to police. Donaldson’s daughter testified
that her mother and Stretch were friends. N.E., who was there at the time
of the shooting, testified that Stretch was at the apartment that night and
had been to the apartment on at least one other occasion. The mutual friend
also testified that Donaldson was awake and “kicking back” on her bed
while everyone was in her room, and fully aware of what had happened.
The evidence that Donaldson yelled “Stretch” in the aftermath of the
gunshot, and later tried to conceal that fact, further indicates her awareness
of his identity and his actions.

¶12            The state also presented sufficient evidence to allow the jury
to infer that Donaldson—aware that Stretch had caused the gun to fire in
her bedroom—knowingly concealed Stretch’s identity from police.
According to several neighbors and Donaldson’s daughter, the shot was
fired sometime between 2:00 and 2:30 a.m. Donaldson did not, however,
call the police until 2:47 a.m. The fact that she and R.R. were anxiously
whispering outside her apartment shortly after the gunshot but before she
called 9-1-1 further permitted the jury to conclude that she strategically
delayed calling 9-1-1 to help Stretch escape before police arrived. And
when the police asked Donaldson about Stretch, she was evasive. She told
them she knew a man named “Strep” but was not friends with him, that he
was under six feet tall (whereas other evidence showed that Stretch was
well over six feet tall), and that she did not think he was in her apartment
that night. Later, when Donaldson and her daughter were waiting in a
police station holding room and her daughter asked her why she had yelled
“Stretch,” Donaldson responded by warning her that the room was being
recorded. An inference that Donaldson was trying to hide information
from the police could reasonably be drawn from such evidence.

¶13           In light of the foregoing evidence that Donaldson knew
Stretch’s identity and was aware that he had shot A.P., the jury reasonably
could have concluded that she knowingly concealed Stretch’s identity—she
both delayed calling 9-1-1 to help Stretch escape and provided misleading
information to police—to hinder the police’s apprehension or the state’s


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                         STATE v. DONALDSON
                           Decision of the Court

prosecution of Stretch. See A.R.S. §§ 13-2512(A), -2510(6); see also State v.
Martinez, 175 Ariz. 114, 117–18 (App. 1993) (holding evidence that
defendant closed front door on police while there were drugs in plain sight
inside the apartment was sufficient to allow jury to infer that defendant had
requisite intent to hinder prosecution of a drug offense).

                              CONCLUSION

¶14          We affirm Donaldson’s conviction and the court’s resulting
imposition of probation.




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




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