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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       TERRY LEE HAVER, Appellant.

                             No. 1 CA-CR 16-0419
                               FILED 12-19-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-005364-001
              The Honorable George H. Foster, Jr., Judge

              AFFIRMED IN PART; REMANDED IN PART


                                   COUNSEL

The Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

The Maricopa Public Defender’s Office, Phoenix
By Tennie B. Martin, Christopher Johns
Counsel for Appellant
                           STATE v. HAVER
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Retired Judge Thomas C.
Kleinschmidt1 joined.


T H O M P S O N, Judge:

¶1             Terry Lee Haver (appellant) appeals from his convictions on
six counts of theft and five counts of forgery. Finding no error, we affirm
in part, and remand in part.

              FACTUAL AND PROCEDURAL HISTORY

¶2            Appellant was the owner of a general contracting company
hired to build an additional wing onto a hotel project for client World
Travel Inns (client). In order to be paid, appellant had to submit monthly
fee applications and lien waivers from various subcontractors. Each pay
application required certification that appellant’s company would, and
did, use the disbursed money to pay the subcontractors in a full and
timely manner.

¶3            Over time, the bank that was processing the applications
became suspicious that the work being billed for was either not done
and/or the subcontractors invoices and waivers were being forged.
Subcontractors were complaining to the client and the building
superintendent that they were not being paid or were being underpaid.
The architect noticed discrepancies between the work that was billed as
completed and work that was actually completed. The bank ultimately
instituted a dual-check system to insure subcontractors got paid.

¶4           Not long thereafter, appellant approached the client asking
for additional retainage funds to be released to him, even though the
project was not done. Appellant advised the client that without the


1     The Honorable Thomas C. Kleinshmidt, Retired Judge of the Court
of Appeals, Division One, has been authorized to sit in this matter
pursuant to Article 6, Section 3, of the Arizona Constitution.




                                    2
                             STATE v. HAVER
                            Decision of the Court

additional monies he would have to file bankruptcy. Appellant next
demanded $100,000 from the client or told the client he could not finish
the building. Within a couple of days of the client’s denial of that request,
appellant walked off the job. Neither the client or most of the
subcontractors heard from him again. Appellant moved to Indiana.

¶5            Appellant received thirteen disbursements totaling in excess
of two million dollars. An investigation put the amount of unaccounted
for money, between what appellant said he paid the contractors and what
he actually paid, at $528,595.18. Appellant later admitted to the police
that he had used some of the money to pay subcontractors on other jobs
and that he had signed some of the lien waivers. In testifying, he again
admitted he had used some of the disbursed money to pay subcontractors
on other jobs, but indicated those payments would have been out of his
profits on the hotel job.

¶6          This matter was designated a complex case. Over one
hundred exhibits were introduced into evidence and testimony was taken
from over a dozen witnesses. Appellant testified, for four days, in his
own defense.2

¶7           After a fourteen-day jury trial, appellant was convicted of
theft against the client, and theft and forgery as to each of the five
impacted subcontractors. Appellant was sentenced to concurrent
sentences of: five years for Counts 1 (theft) and 2 (theft), 7.5 years for
Counts 3 (theft) and 4 (theft), 6.5 years for Count 6 (theft), 1.75 years for
Count 7 (theft), and 4.5 years each on the remaining 5 forgery counts.
Appellant was given 65 days’ presentence incarceration credit. Appellant
timely appealed.

                               DISCUSSION

¶8            On appeal, appellant asserts two claims. First, appellant
claims that the trial court erred in giving a flight or concealment
instruction over his objection. Appellant argues that he merely closed the
business and returned to Indiana where he retained a residence and
where there was an opportunity for construction work. He maintains that
there was insufficient evidence in the record to warrant a flight or
concealment instruction, that such an instruction was unfairly prejudicial,
and that it permitted the jury to wrongly consider his move as


2   Five additional counts had been dismissed.



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                            STATE v. HAVER
                           Decision of the Court

consciousness of guilt. We review the trial court’s decision to give a jury
instruction for an abuse of discretion. State v. Parker, 231 Ariz. 391, 409, ¶
44 (2013).

¶9            The jury instruction read:

       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 . . . Running away, hiding, or concealing evidence
       after a crime [] does not by itself prove guilt.

¶10             It was undisputed that appellant left the jurisdiction,
despite being the general contractor in a project underway. He left the job
without giving notice to the client or the subcontractors. It was
undisputed that after failing to obtain additional funds from the client, he
never again had contact with the client or most of the subcontractors. He
did not leave them additional contact information.

¶11           The trial court gave appellant’s counsel the opportunity to
address the instruction before the jury. He said:

       this instruction is really completely inapplicable in this case.
       You heard testimony that because of what happened with
       the Sahuaro Group project, or I'm sorry, the SpringHill
       Suites project, the Sahuaro Group had to close their doors,
       they closed business, Lee moved back to Indiana where he
       was from. He didn't take off and move to Mexico. He didn't
       just turn off all his phones and leave. He had forwarding
       addresses, he still had the same phone number or
       presumably an easy enough phone number to find.
       Detective Bermudez called him up. He did not run away,
       hide, or conceal evidence in this case. This instruction is just
       completely inapplicable to the facts of this case.

We agree with the state that the evidence of guilt was such that even had
the instruction been erroneous, that the convictions could be maintained
as the error was harmless. State v. Solis, 236 Ariz. 285, 287-88, ¶¶ 13-14
(App. 2014) (citing State v. Valverde, 220 Ariz. 582, 586, ¶ 16 (2009) (flight
instruction did not contribute to or affect the verdict)). For these reasons,
the trial court is affirmed.




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                            STATE v. HAVER
                           Decision of the Court

¶12           As to the second issue, presentence incarceration credit, the
state concedes that appellant should have received credit at least for the
time he spent in jail in Indiana and that the trial court failed to give him
that credit. This matter is remanded to the trial court for a recalculation of
presentence incarceration credit.

                               CONCLUSION

¶13           For the above stated reasons, appellant’s convictions and
sentences are affirmed. This matter is remanded to the trial court for
recalculation of appellant’s presentence incarceration credit.




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




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