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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 RICHARD ANTHONY JONES, Appellant.

                             No. 1 CA-CR 14-0103
                                 FILED 10-15-15


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-130209-001
                 The Honorable M. Scott McCoy, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele G. Ponce
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                            STATE v. JONES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.


T H U M M A, Judge:

¶1            Richard Anthony Jones appeals his conviction and resulting
sentence for aggravated assault, claiming the superior court erred in
instructing the jury on flight or concealment. Because Jones has not shown
fundamental error resulting in prejudice, his conviction and resulting
sentence are affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2           In May 2012, Jones was driving to his Phoenix home, with his
step-daughters in the car, when he stopped to speak with M.E.,2 who was
with a neighbor, A.C. After arguing about a car paint job for about ten
minutes, Jones punched M.E. in the face, knocking him to the ground. Jones
then got back in the car and drove home. M.E. was later diagnosed with an
acute subdural hematoma (bleeding over the surface of the brain) requiring
brain surgery.

¶3             Jones was charged with one count of aggravated assault
(intentionally, knowingly or recklessly causing a serious physical injury), a
Class 3 felony. At trial, A.C. testified that he was outside while Jones and
M.E. argued for about ten minutes and then went inside his home to put on
his shoes. When he came back outside, he saw M.E. laying in the street,
unconscious, and Jones and his car were gone. To impeach A.C., the State
offered evidence that A.C. previously said he saw Jones quickly get back
into his car and drive away right after the assault.



1On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2, 212 P.3d 11, 12 (App. 2008).

2Initials are used to protect the victims’ privacy. State v. Maldonado, 206
Ariz. 339, 341 n.1 ¶ 2, 78 P.3d 1060, 1062 n.1 (App. 2003).



                                      2
                             STATE v. JONES
                            Decision of the Court

¶4             Jones elected to testify and admitted to hitting M.E. and that
M.E. fell to the street but that he acted in self-defense. Jones called his step-
daughter as a witness and she testified that M.E. raised his arms in front of
Jones as if he was “bringing pom poms up” before Jones punched him.
Jones also testified that, after the incident, he “went home and I waited for
the police if they were going to come.”

¶5            Without objection, the superior court gave the jury the
following instruction:

              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.

¶6            The State mentioned the instruction once during closing
arguments:

              [T]he judge also read you the flight instruction
              which is on page 3. And one of the things is that
              you can consider evidence of the defendant’s
              running away or hiding after a crime has been
              committed. Now, in itself it’s not guilt but
              potential consciousness of guilty, running away
              after a crime has been committed. Defendant
              knew it was a crime because he told you today
              he was waiting for police. He thought the police
              were going to come. And what reasonable
              person leaves a man on the ground who's
              unconscious? Even if you don't know the man.
              What reasonable person leaves them there?

Defense counsel countered by saying in closing arguments,

              Now, that jury instruction talks about flight and
              concealment, and I just ask you to read it all
              together. Flight and concealment. So he left



                                       3
                              STATE v. JONES
                             Decision of the Court

              there. But did he ever try to conceal anything?
              No.

The primary focus of closing arguments for both parties was Jones’ self-
defense claim, his primary defense at trial.

¶7            After considering the evidence and argument, the jury
convicted Jones as charged. Given his prior criminal history, Jones was
sentenced to a presumptive term of 11.25 years in prison, and appropriately
credited with 266 days of presentence credit. This court has jurisdiction
over Jones’ timely appeal pursuant to the Arizona Constitution, Article 6,
Section 9, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(2015).3

                                DISCUSSION

¶8             Jones argues the superior court erred in giving the flight or
concealment instruction. Jones failed to make a timely objection, meaning
review on appeal is limited to fundamental error. See Ariz. R. Crim. P.
21.3(c); State v. Henderson, 210 Ariz. 561, 567 ¶¶ 19-20, 115 P.3d 601, 607
(2005). “Accordingly, [Jones] ‘bears the burden to establish that “(1) error
exists, (2) the error is fundamental, and (3) the error caused him
prejudice.”’” State v. James, 231 Ariz. 490, 493 ¶ 11, 297 P.3d 182, 185 (App.
2013) (citations omitted).

¶9              A flight instruction is proper if “the State presents evidence of
flight after a crime from which jurors can infer a defendant’s consciousness
of guilt.” State v. Solis, 236 Ariz. 285, 286 ¶ 7, 339 P.3d 668, 669 (App. 2014).
To justify a flight instruction, the “manner of leaving the scene of the crime
must reveal consciousness of guilt,” because “merely leaving the scene of a
crime is not evidence of flight.” State v. Lujan, 124 Ariz. 365, 371, 604 P.2d
629, 635 (1979). The focus is on the manner of leaving the scene because
flight “is viewed as an admission by conduct” when it “manifests a
consciousness of guilt.” State v. Hunter, 136 Ariz. 45, 48, 664 P.2d 195, 198
(1983). Evidence of pursuit is not required. Lujan, 124 Ariz. at 371, 604 P.2d
at 635. Indeed, running instead of walking from the scene of the crime may
justify a flight instruction. Id. (rejecting challenge to flight instruction where
evidence showed “defendant and his accomplices ran away from the scene
of a stabbing immediately after it occurred”).

¶10           Jones argues the trial evidence does not support a reasonable
inference that he fled from the scene or that he attempted to conceal himself.

3Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                        4
                             STATE v. JONES
                            Decision of the Court

Although Jones is correct that the State did not present any evidence of
concealment, it did present flight evidence. A detective testified to A.C.’s
statement that he saw Jones moving quickly to his car and driving away.
Such evidence would justify a flight instruction. See Lujan, 124 Ariz. at 371,
604 P.2d at 635 (“[r]unning from the scene of a crime, rather than walking
away, may provide evidence of a guilty conscience prerequisite to a flight
instruction”) (citations omitted). Although Jones argues he left the scene to
protect his children, the existence of an alternative reason for flight does not
preclude a flight instruction. Hunter, 136 Ariz. at 49, 664 P.2d at 199 (finding
flight instruction was not error when defendant claimed he ran out of fear,
not consciousness of guilt). Accordingly, on this record, the superior court
did not err in giving the flight instruction.

¶11            Even if the instruction could be considered error, Jones has
not shown it was “error going to the foundation of the case, error that takes
from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial”
or that it resulted in prejudice. Henderson, 210 Ariz. at 568 ¶ 19, 115 P.3d at
607 (quotations omitted). The instruction given was permissive; it began,
“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.” (Emphasis added.) Nor has Jones shown how this standard
permissive instruction diluted the burden of proof causing prejudice,
particularly where Jones testified and admitted he punched M.E. See State
v. Steed, 109 Ariz. 137, 139, 506 P.2d 1031, 1033 (1973) (“The defendant took
the stand and admitted an assault upon the victim. The giving of the
instruction could have had no effect upon the resulting verdict of guilty,
and hence was harmless, if error it was.”). The jury heard evidence that A.C.
found M.E. unconscious on the ground right after Jones hit him. The jury
also heard evidence offered by Jones on his self-defense claim and was
properly instructed on self-defense yet still returned a guilty verdict. Given
this record, Jones has not shown that any error in giving the flight
instruction was fundamental or resulted in prejudice. See Solis, 236 Ariz. at
288 ¶ 14, 339 P.3d at 671.4




4 Similarly, Jones has not shown how the aspect of the instruction
addressing “hiding or concealing evidence” was mentioned in arguments
or arguably could have resulted in fundamental error resulting in prejudice.


                                       5
                          STATE v. JONES
                         Decision of the Court

                            CONCLUSION

¶12           Because Jones has not shown fundamental error resulting in
prejudice, his conviction and resulting sentence are affirmed.




                                 :jt

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