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           UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
                                    PRECEDENTIAL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

                    CURTIS W. QUINERLY, Appellant.

                            No. 1 CA-CR 17-0233
                              FILED 5-17-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2015-124358-001
              The Honorable John Christian Rea, Judge

                                 AFFIRMED


                                  COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

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



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge James B. Morse Jr. joined.


J O N E S, Judge:

¶1              Curtis Quinerly appeals his conviction for one count of
misconduct involving weapons. Quinerly argues the trial court erred in
(1) refusing to suppress evidence and testimony regarding the gun seized
at the time of the traffic stop, and (2) providing a flight instruction to the
jury at trial. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             On May 27, 2015, while conducting surveillance for an
unrelated burglary investigation, a Phoenix police sergeant observed and
reported a Mercedes with a fictitious temporary license plate
corresponding to a different model car.1 After the vehicle parked in a
nearby lot, a detective in a marked patrol car pulled in behind it and
activated its lights. A passenger, later identified as Quinerly, immediately
exited the car and began walking away. The detective told Quinerly to get
back into the car, and Quinerly complied.

¶3            After talking with the driver, the detective asked Quinerly if
he had spent any time in prison. Quinerly answered affirmatively, stating
he had a prior felony conviction for aggravated battery out of Illinois. The
detective asked Quinerly if he had a concealed weapon permit and
Quinerly said, “no.” The detective then asked Quinerly if he had any
weapons, and Quinerly admitted having a gun in his pocket. The sergeant,
who assisted the detective with the stop, removed the gun and placed him
under arrest for illegally possessing a firearm.




1      We view the facts in the light most favorable to sustaining the trial
court’s rulings. State v. Havatone, 241 Ariz. 506, 509, ¶ 11 (2017) (reviewing
motion to suppress) (citing State v. Butler, 232 Ariz. 84, 87, ¶ 8 (2013)); State
v. Rutledge, 197 Ariz. 389, 390 n.1, ¶ 1 (App. 2000) (reviewing jury
instructions) (citing State v. Atwood, 171 Ariz. 576, 596 (1992)).


                                       2
                           STATE v. QUINERLY
                           Decision of the Court

¶4            The State charged Quinerly with one count of misconduct
involving weapons. Before trial, Quinerly filed a motion to suppress both
his statements regarding the gun and the gun itself. Quinerly argued the
officers unlawfully seized him and elicited statements in violation of his
state and federal constitutional rights. Relying upon Miranda v. Arizona, 384
U.S. 436 (1966), and the fruit of the poisonous tree doctrine, Quinerly
argued all statements and physical evidence must be suppressed. In
response, the State agreed officers placed Quinerly in custody before on-
scene questioning, but argued the questions did not rise to the level of
custodial interrogation and the types of questions asked were proper under
the public safety exception. The trial court found Quinerly was not
adequately warned prior to making incriminating statements and
suppressed the statements but determined the gun was admissible because
it would have been discovered even without Quinerly’s admissions.

¶5             Quinerly also moved to preclude testimony that he attempted
to evade arrest or flee the scene. Quinerly argued this testimony would be
unfairly prejudicial. The trial court denied Quinerly’s motion, noting
“there is a standard jury instruction where the jury can infer consciousness
of guilt from flight.” On the final day of trial, the State filed proposed jury
instructions and requested the court provide the flight or concealment jury
instruction. Quinerly objected, arguing the State provided no evidence that
he ran away, hid, or concealed evidence. Finding the State presented
“evidence to support” such an instruction, the court included the flight
instruction within the final jury instructions.

¶6           Following a three-day trial, the jury convicted Quinerly as
charged, and the trial court sentenced him to the presumptive term of ten
years’ imprisonment. Quinerly appealed,2 and we have jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),3 13-4031,
and -4033(A)(1).




2     The State concedes the delay in filing the notice of appeal should not
bar review, and we agree. Although Quinerly absconded during trial,
nothing within the record indicates the trial court informed Quinerly that a
voluntary delay in sentencing could result in forfeiture of his right to
appeal. See State v. Bolding, 227 Ariz. 82, 88, ¶¶ 16-20 (App. 2011).

3     Absent material changes from the relevant date, we cite a statute’s
current version.


                                      3
                            STATE v. QUINERLY
                            Decision of the Court

                                DISCUSSION

  I.   Suppression of the Evidence

¶7             Quinerly argues the trial court erred by denying his motion
to suppress the gun. We review a ruling on the admissibility of evidence
for an abuse of discretion and will affirm if the ruling is legally correct for
any reason. See State v. Chavez, 225 Ariz. 442, 443, ¶ 5 (App. 2010) (citing
State v. Tucker, 205 Ariz. 157, 165, ¶ 41 (2003), and State v. Perez, 141 Ariz.
459, 464 (1984)). Although both parties spend considerable time discussing
whether Quinerly was in custody for purposes of Miranda, we need not
address this issue because Miranda does not require exclusion of the
physical fruits of a defendant’s voluntary, unwarned statement. United
States v. Patane, 542 U.S. 630, 642-43 (2004) (plurality opinion).

¶8            Additionally, “[v]oluntariness and Miranda are two separate
inquiries.” State v. Montes, 136 Ariz. 491, 494 (1983). Quinerly did not raise
the issue of voluntariness below or on appeal, and nothing within the
record suggests his statements were made involuntarily. Cf. State v. Finn,
111 Ariz. 271, 275 (1974) (holding a trial court is not required to sua sponte
“determine possible involuntariness where the question of voluntariness is
not raised either by the evidence or the defense counsel”); State v. Snee,
1 CA-CR 16-0731, 2018 WL 1631560, at *2, ¶ 10 (Ariz. App. Apr. 5, 2018)
(holding neither the Constitution nor state statute “required the trial court
to conduct a voluntariness hearing absent some objection by defendant”).

¶9             Accordingly, we hold, pursuant to Patane, that suppression of
the gun was not a remedy available to Quinerly under the circumstances
presented here, even though his statements were unwarned. Accordingly,
the trial court’s denial of Quinerly’s motion to suppress the gun was legally
correct.

 II.   Flight Instruction

¶10           Quinerly also argues the trial court erred in providing a flight
instruction over his objection because it was unsupported by the evidence.
The State argues that, even if this Court were to conclude the court erred in
providing the instruction, the error was harmless. An erroneous instruction
is harmless error when, taken as a whole, “the trial evidence, arguments of
counsel, and the [jury] instructions” demonstrate “beyond a reasonable
doubt that the error did not contribute to or affect the verdict.” State v. Solis,
236 Ariz. 285, 287-88, ¶¶ 13-14 (App. 2014); see also State v. Bible, 175 Ariz.




                                        4
                           STATE v. QUINERLY
                           Decision of the Court

549, 588 (1993) (“We must be confident beyond a reasonable doubt that the
error had no influence on the jury’s judgment.”).

¶11            We decline to decide whether giving the flight instruction was
error under the circumstances of this case because even if it were, the error
would be harmless. The jury heard testimony that Quinerly had previously
been convicted of a felony and that he had completed probation less than
two years before a handgun was found in his pocket. The trial court
instructed the jury that “if a person was convicted of any felony offense, the
person may not file for the restoration of the right to possess or carry a gun
or firearm for two years from the date of the person’s discharge from
probation.” Although both officers testified that Quinerly left the vehicle
immediately after the traffic stop was initiated, and the State and Defense
both referred to the flight instruction during their closing arguments, the
trial court instructed the jury that, “[r]unning away, hiding, or concealing
evidence after a crime has been committed does not by itself prove guilt,”
and that “as [the jury] determine[d] the facts, . . . [it might] find that some
instructions no longer appl[ied].” On this record, we are convinced beyond
a reasonable doubt that the flight instruction did not contribute to or affect
the verdict.

                               CONCLUSION

¶12           Quinerly’s conviction and sentence are affirmed.




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




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