                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   TREVIN DWIGHT HEARD, Appellant.

                             No. 1 CA-CR 13-0743
                              FILED 07-31-2014

           Appeal from the Superior Court in Maricopa County
                        No. CR2012-157514-001
             The Honorable Christine E. Mulleneaux, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Kent E. Cattani joined.
                             STATE v. HEARD
                            Decision of the Court

H O W E, Judge:

¶1           Trevin Dwight Heard appeals his conviction and sentence for
possession or use of narcotic drugs. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           In March 2012, Phoenix Police Officer R.G. observed Heard’s
car speeding. After stopping Heard, Officer R.G. detected an odor of
marijuana emanating from the car. Officer R.G. asked for Heard’s consent
to search him. After Heard consented, Officer R.G. located a “small black
plastic baggy containing a white substance” in Heard’s pant pocket. The
substance was subsequently identified as 270 milligrams of cocaine.

¶3           Heard was indicted on one count of possession or use of
narcotic drugs, a class 4 felony. At trial, the State presented its evidence that
Heard possessed the cocaine. Heard defended by arguing that he was not
speeding and was profiled by the police officer. Heard also argued that the
search was not consensual and that he was unaware that the baggy
contained cocaine.

¶4            Among other proposed jury instructions, the State requested
that the jury be instructed as follows regarding flight or concealment: “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.” Heard did not object, and the jury was so instructed.
The trial court also agreed to give an instruction advising that some jury
instructions might be inapplicable:

       You must consider all these instructions. Do not pick out one
       instruction, or part of one, and ignore the others. As you
       determine the facts, however, you may find that some
       instructions no longer apply. You must then consider the
       instructions that do apply, together with the facts as you have
       determined them.

¶5            The jury found Heard guilty as charged. Heard filed a timely
notice of appeal.

                                DISCUSSION

¶6          Heard argues that the superior court erred by giving the flight
or concealment jury instruction. He contends that the instruction was

                                       2
                             STATE v. HEARD
                            Decision of the Court

unsupported by the evidence and that he was prejudiced from this error
because the instruction “allowed the jury to presume guilt[] based on non-
existent conduct.”

¶7            We review for fundamental error because Heard failed to
make this argument below. State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115
P.3d 601, 607 (2005). Fundamental error is limited to “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.” Id. To prevail on such a claim, Heard
bears the burden of demonstrating that the superior court erred, that the
error was fundamental, and that he was prejudiced thereby. Id. at ¶ 20.

¶8             We need not address whether error occurred because we find
that any possible error resulting from the flight or concealment instruction
was neither fundamental nor prejudicial. The instruction did not alter the
elements of the offense for which Heard was charged, alter the State’s
burden of proof, or otherwise encroach on Heard’s constitutional rights.
Instead, jurors were advised that the flight instruction may no longer apply
as facts are determined. See State v. Celaya, 135 Ariz. 248, 257, 660 P.2d 849,
858 (1983) (noting the conditional nature of the flight instruction, as well as
the fact that “the jury was instructed to disregard any instructions they
found not to apply after they had determined the facts.”); State v. Detrich,
178 Ariz. 380, 384, 873 P.2d 1302, 1306 (1994) (“The flight instruction—even
assuming it was improper—[did] not rise to the level of fundamental
error.”). Finally, the instruction did not affect Heard’s defenses that he was
not speeding and that he was unaware that the baggie contained cocaine.
And neither the State nor Heard mentioned this instruction during closing
argument. Even had error occurred, Heard has failed to meet his burden of
demonstrating that he was prejudiced by the flight instruction.

                              CONCLUSION

¶9            For the foregoing reasons, we affirm.




                                    :gsh




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