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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ERIC STEVEN WRIGHT, Appellant.

                             No. 1 CA-CR 15-0661
                               FILED 1-31-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-121475-001
                  The Honorable Jose S. Padilla, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence Blieden
Counsel for Appellant
                           STATE v. WRIGHT
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.


M c M U R D I E, Judge:

¶1           Eric Steven Wright appeals his conviction and sentence for
one count of possession of a dangerous drug for sale. For the following
reasons, we affirm.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2             In May 2014, the Glendale Police Department was conducting
surveillance of a residence with reported drug activity, when Officer
Rochelle Thomas saw two males leave the residence, get into a Cadillac,
and drive away. Officer Thomas followed the Cadillac, and after she
witnessed the Cadillac turn left without signaling, alerted Detective Shaun
Hardesty, a uniformed officer who was driving an unmarked police
vehicle, of the Cadillac’s license plate number and direction of travel.2

¶3            Detective Hardesty located the Cadillac, positioned himself
behind it, and activated his blue and red lights in an attempt to stop the
vehicle. The Cadillac did not immediately pull over, but passed several
streets before pulling into a shopping center parking lot. Officer Hardesty
then activated his siren, and the Cadillac continued through the parking lot
passing several aisles of parking spaces before finally coming to a stop.

¶4            The driver of the vehicle was identified by Detective Hardesty
as Eric Steven Wright (“Defendant”), who admitted to driving with a
suspended license. As a result, Detective Hardesty conducted an inventory
search of the vehicle and found five plastic bags containing a white crystal


1      We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).

2     While the vehicle was unmarked, it did have blue and red lights in
the windshield and a police siren.


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                            STATE v. WRIGHT
                            Decision of the Court

substance later identified as methamphetamine. The five bags contained
varying amounts of methamphetamine totaling 12.3 grams. Defendant was
placed under arrest and a search of his person found $4,220 in cash.

¶5             Defendant was charged with possession of a dangerous drug
for sale and pled not guilty. At his jury trial, the court overruled
Defendant’s Batson objection to the prosecutor’s peremptory strike of a
juror; that juror being the only then-remaining black juror in the venire. At
the close of trial, the jury was given a flight instruction without objection
from Defendant. Defendant was found guilty as charged and sentenced to
the presumptive term of 10 years. This timely appeal followed and we have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2010).

                               DISCUSSION

¶6            Defendant argues that the trial court erred by allowing the
State to strike a juror for discriminatory reasons, and by giving a flight
instruction to the jury.

A.     Batson Challenge.

¶7             Defendant first challenges the State’s peremptory strike of a
juror as a violation of his rights under Batson v. Kentucky, 476 U.S. 79 (1986).
A discriminatory peremptory strike is a violation of the Equal Protection
Clause of the Fourteenth Amendment. Batson, 476 U.S. at 85-86. We review
Batson challenges for clear error. State v. Hardy, 230 Ariz. 281, 285, ¶ 11
(2012).

¶8            A Batson challenge proceeds in three stages: (1) a defendant
must make a prima facie showing of discrimination, (2) the prosecutor then
must offer a race-neutral reason for the strike, and (3) the court determines
whether the challenger proved purposeful racial discrimination. Id. at 285,
¶ 12 (quoting State v. Gallardo, 225 Ariz. 560, 565, ¶ 11 (2010)). Defendant
argues both that the prosecutor did not provide a race-neutral reason, and
that the superior court did not undertake the analysis required by the third
stage of the process.

¶9           Under the second stage of a Batson challenge, the prosecutor
must only supply a facially valid explanation to satisfy the burden. See
Hernandez v. New York, 500 U.S. 352, 360 (1991). The explanation does not
need to be “persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 768
(1995). When asked at trial, the prosecutor offered:



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                            STATE v. WRIGHT
                            Decision of the Court

       [O]ne of the most important things I look is at [sic] prior jury
       experience. [The stricken juror] noted that he had been on . . .
       three trials, two of which were criminal, and he was the only
       respondent who was still on our panel who had returned a
       not guilty verdict in a criminal case. Specifically, the way he
       described the case . . . . [H]e was part of a jury that did not
       convict the motorist that was on trial because he noted that
       the victim had made a left-hand turn.

       [T]he very fact of the acquittal is the first basis . . . and his
       reasoning for the not guilty verdict gave the State further
       cause to make that strike.

While Defendant argues this explanation was inconsistent with other
challenges the prosecutor made to the prospective jury panel, this
explanation was facially race-neutral and thus satisfied the prosecutor’s
burden. See Purkett, 514 U.S. at 769 (“[A] ‘legitimate reason’ is not a reason
that makes sense, but a reason that does not deny equal protection.”).

¶10           Under the third stage, the analysis is fact intensive and turns
on the credibility of the prosecutor. Miller-El v. Cockrell, 537 U.S. 322, 339-40
(2003). As such, the trial court is in the best position to make a finding and
is therefore “due much deference.” State v. Newell, 212 Ariz. 389, 401, ¶ 54
(2006). After the prosecutor gave his race-neutral reason for the strike,
Defendant’s attorney argued that other non-minority jurors on the panel
with similar qualifications were not stricken by the prosecutor. The court
then denied Defendant’s challenge and impaneled the jury.

¶11           Defendant cites to several cases from other jurisdictions
requiring courts to provide, on the record, a basis for their analysis under
the third stage of a Batson challenge. However, there is no requirement in
Arizona that a court make such detailed findings. Miller-El, 537 U.S. at 347
(“[A] state court need not make detailed findings addressing all the
evidence before it.”); see also State v. Canez, 202 Ariz. 133, 147, ¶ 28 (2002)
(“the trial court ruled against [defendant’s] challenge, implicitly finding
that he had not carried his burden of proving purposeful discrimination”),
abrogated on other grounds by State v. Valenzuela, 239 Ariz. 299 (2016). By
denying Defendant’s challenge the court implicitly found that Defendant
failed to establish the State’s reason was a pretext for purposeful
discrimination. See Canez, 202 Ariz. 133, 147, ¶ 28. We find no error.




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                             STATE v. WRIGHT
                             Decision of the Court

B.     Flight Instruction

¶12           Defendant also argues that the court erred in giving a flight
instruction. We review jury instructions for an abuse of discretion. State v.
Parker, 231 Ariz. 391, 403, ¶ 44 (2013). However, if a defendant fails to object
to an error below, they forfeit the right to relief unless fundamental error
occurred. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). A fundamental
error is one that goes “to the foundation of the case . . . tak[ing] from the
defendant a right essential to his defense, and . . . of such magnitude that
the defendant could not possibly have received a fair trial.” Id.

¶13           A flight instruction is proper if the evidence supports a
reasonable inference of either (1) open flight as a result of immediate
pursuit, or (2) the defendant utilized the element of concealment. State v.
Smith, 113 Ariz. 298, 300 (1976). A trial court can also give a flight instruction
based on evidence that may “infer consciousness of guilt.” Parker, 231 Ariz.
at 403, ¶ 44.

¶14            The only evidence in the record of flight is the testimony of
Detective Hardesty. He testified at trial that, after he initiated the lights on
his unmarked police cruiser, the Defendant continued “three or four
streets” before pulling into a shopping center. Detective Hardesty then
turned on his siren and the Defendant, despite passing “plenty of
opportunities to pull into a parking lot or space,” continued through the
parking lot for several aisles before finally stopping. In addition, the stop
took place around 3 p.m. on a Tuesday afternoon, when there would not be
heavy traffic in a shopping center parking lot.

¶15            A defendant driving slowly for a short distance, before
pulling into a parking lot for a police vehicle displaying lights, but no siren,
is not a strong indication of flight as a result of pursuit, see State v. Cutright,
196 Ariz. 567, 570, ¶ 14 (App. 1999) (finding such behavior “may be too
equivocal”), overruled on other grounds by State v. Miranda, 200 Ariz. 67
(2001), however this evidence is sufficient to support the trial court’s
finding and is not an abuse of discretion. Though Defendant may have seen
the time he took to pull over as reasonable, a jury could also infer from
Detective Hardesty’s testimony an inference of guilt, or that he was using
the time to attempt to conceal evidence. See Parker, 231 Ariz. at 403, ¶ 44;
State v. Edwards, 136 Ariz. 177, 184 (1983). Accordingly, we find no error.




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                  STATE v. WRIGHT
                  Decision of the Court

                      CONCLUSION

¶16   Defendant’s conviction and sentence are affirmed.




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




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