flight instruction in Arizona

2024See State v. Bolivar, 250 Ariz. 213 , 219, ¶ 14 (App. 2020) (failing to propose or request a limiting instruction at trial waives the issue on appeal absent fundamental error). ¶58 Foster next argues that the facts did not justify giving a flight instruction because “[t]here was no immediate pursuit, there was no concealment or attempted concealment,” and Foster’s “actions did not make him harder to find or camouflage his activities.” Instead, he “simply proceeded home.” In response, the State contends that “the flight instruction was appropriate because the trial evidence showed that Foster c

2024State v. Smith, 113 Ariz. 298, 300 (1976). ¶28 “Running from the scene of a crime, rather than walking away, may provide evidence of a guilty conscience prerequisite to a flight instruction.” State v. Lujan, 124 Ariz. 365, 371 (1979) (citation omitted).

2024He contends that “nothing in the record indicat[es]” he “may have taken flight or concealed evidence.” “We review the trial court’s decision to give a flight instruction for abuse of discretion.” State v. Parker, 231 Ariz. 391, ¶ 44 (2013). ¶34 A trial court may give a flight or concealment instruction when the evidence supports a reasonable inference that the accused attempted to conceal evidence.

2024State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013). ¶26 The flight instruction stated: 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.

2021Giving a Flight Instruction Was Error. ¶9 A flight instruction should only be given where “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 (App. 2014) (citing State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013)).

2021Under such review, an error in giving a flight instruction is harmless if, in review of the evidence, we are convinced “beyond a reasonable doubt that the error did not contribute to or affect the verdict.” Solis, 236 Ariz. at 287 , ¶ 13 (quoting Bible, 175 Ariz. at 588 ). ¶22 The State bears the burden under harmless error analysis to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict.

2023State v. Speers, 209 Ariz. 125, 132, ¶ 28 (App. 2004) (quoting State v. Smith, 113 Ariz. 298, 300 (1976)). ¶39 "[M]erely leaving the scene or engaging in travel is not sufficient to support the giving of a flight instruction." Id.

2021Id.; State v. Speers, 209 Ariz. 125, 132, ¶ 28 (App. 2004). ¶9 Lane argues that because she was not driving, nor did she tell the driver to drive away or back down the street, the flight instruction was unwarranted.

2021Salazar, 112 Ariz. at 357 ; see also State v. Weible, 142 Ariz. 113, 116 (1984) (instruction is proper when the defendant’s behavior “obviously invites suspicion or announces guilt”). ¶10 The fact that Lane was in the car as Morales drove away was insufficient by itself to support the flight instruction.

2021To qualify for the flight instruction, the evidence must “go beyond an argument by counsel,” and rather “point out to jurors that they may consider the defendant’s behavior as bearing on guilt or innocence.” Speers, 209 Ariz. at 133 , ¶ 30 (quoting Weible, 142 Ariz. at 116 ). ¶13 Sufficient evidence supports the inference that Lane concealed the Ruger.

2024See also State v. Hunter, 136 Ariz. 45, 49 (1983) (holding an appellant’s argument that “he ran from the scene out of fear, not out of consciousness of guilt” did not preclude the flight instruction).

2023State v. Hunter, 136 Ariz. 45, 49 (1983) (“[E]ither fleeing the scene as upon open pursuit or concealment is sufficient to support a flight instruction.”); see also Carter v. State, 121 P.3d 592, 599 (Nev. 2005) (holding that evidence that defendant “concealed himself under a pile of clothes in his apartment” while defendant’s wife misled police about his whereabouts “supported the [flight] instruction”).

2023Although merely leaving the scene is not evidence that warrants a flight instruction, the instruction may be given “where the circumstances of leaving the crime scene reveal a defendant’s consciousness of guilt.” State v. Wilson, 185 Ariz. 254, 257 (App. 1996).

2019George likens his conduct to that of the defendant in State v. Wilson, who did not leave the crime scene in haste or pursuit, but instead “went home and awaited the expected arrival of the police.” 185 Ariz. 254, 257 (App. 1995) (holding that inclusion of a flight instruction was in error). ¶11 Sufficient evidence shows that George walked away from the car after crashing into the pole to avoid being caught by police.

2023State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013). ¶38 A flight instruction is proper when the State presents evidence of a defendant's post-crime conduct "from which jurors may infer 'consciousness of guilt for the crime charged.'" Id. (quoting State v. Edwards, 136 Ariz. 177, 184 (1983)).

2020State v. Solis, 236 Ariz. 285, 286, ¶ 6 (App. 2014); see State v. Anderson, 210 Ariz. 327, 343, ¶ 60 (2005). ¶11 Before the superior court may give a flight instruction, the State must present evidence of flight after a crime from which jurors may infer a defendant’s “consciousness of guilt for the crime charged.” State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013) (quoting State v. Edwards, 136 Ariz. 177, 184 (1983)).

2021State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005).

2017A 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.

2021Further, the court also concluded later in the proceedings that R.D. was in immediate, open pursuit of Najera and allowed the State to argue accordingly, even though no evidence appears in this record establishing Najera was aware of R.D.’s pursuit. ¶13 A flight instruction is only proper when the evidence of flight leads to an inference of “a consciousness of guilt for the crime charged.” State v. Bible, 175 Ariz. 549, 592 (1993).

2021Under such review, an error in giving a flight instruction is harmless if, in review of the evidence, we are convinced “beyond a reasonable doubt that the error did not contribute to or affect the verdict.” Solis, 236 Ariz. at 287 , ¶ 13 (quoting Bible, 175 Ariz. at 588 ). ¶22 The State bears the burden under harmless error analysis to prove beyond a reasonable doubt that the error did not contribute to or affect the verdict.

2024State v. Smith, 113 Ariz. 298, 300 (1976). ¶28 “Running from the scene of a crime, rather than walking away, may provide evidence of a guilty conscience prerequisite to a flight instruction.” State v. Lujan, 124 Ariz. 365, 371 (1979) (citation omitted).

2018Running away, hiding, or concealing evidence after a crime has been committed does not by itself prove guilt. ¶9 A flight instruction is proper only when the "[d]efendant's manner of leaving the scene of the crime [reveals] a consciousness of guilt." State v. Lujan, 124 Ariz. 365, 371 (1979).

2024Thus, Jones’ open flight from the crime scene supported the flight instruction. ¶29 A flight instruction is also proper when “the defendant engaged in some ‘eluding’ conduct that either was an attempt to prevent apprehension, or was an attempt to postpone apprehension in order to dispose of or conceal evidence that could tie him to the crime.” State v. Cutright, 196 Ariz. 567, 570, ¶ 12 (App. 1999) (citation omitted), overruled in part by State v. Miranda, 200 Ariz. 67 , 68–69, ¶¶ 4–5 (2001).

2023Running away or hiding after a crime has been committed does not by itself prove guilt. ¶40 Anderson contends the flight instruction was unwarranted because he did not leave the crime scene and his presence on the roof of his home when the police arrived at the scene “is insufficient to establish an inference of hiding or concealment.” “[J]ust because he was on the roof of his own home when the police arrived,” he insists, doesn’t prove he was “hiding.” ¶41 “Instructing on flight is proper when the defendant’s conduct manifests a consciousness of guilt.” State v. Cutright, 196 Ariz. 567, 570,

2014See 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.”).

2014See 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.”).

2019A defendant does not have to run from police or the place of the crime for a flight instruction to be justified, see State v. Clark, 126 Ariz. 428, 434-35 (1980); however, because merely leaving the scene of a crime is not evidence of flight, Smith, 113 Ariz. at 300 , a flight instruction is proper only if the defendant’s “manner of leaving . . . reveal[s] a consciousness of guilt,”Clark, 126 Ariz. at 434 .

2019A defendant does not have to run from police or the place of the crime for a flight instruction to be justified, see State v. Clark, 126 Ariz. 428, 434-35 (1980); however, because merely leaving the scene of a crime is not evidence of flight, Smith, 113 Ariz. at 300 , a flight instruction is proper only if the defendant’s “manner of leaving . . . reveal[s] a consciousness of guilt,”Clark, 126 Ariz. at 434 .

2023See State v. Swinburne, 116 Ariz. 403, 414 (1977) (holding that a defendant’s “activities” that “constitute concealment . . . support the giving of an instruction on flight”). 12 STATE v. ANDERSON Decision of the Court ¶43 In his reply brief, Anderson argues, for the first time, that the court abused its discretion in giving a flight instruction because he asserted a consent defense.

2018See State v. Tison, 129 Ariz. 526, 540 (1981) (record "replete with evidence" of concealment when defendants changed vehicles twice and painted and "partially buried" one of the vehicles); State v. Swinburne, 116 Ariz. 403, 414 (1977) (defendant used false names, shaved beard and dyed hair); State v. Ferrari, 112 Ariz. 324, 333 (1975) (defendant left the state and, upon return, "registered at a motel under an assumed name and listing a false occupation"); State v. Earby, 136 Ariz. 246, 248 (App. 1983) (defendant left the state); State v. Bailey, 107 Ariz. 451, 451-52 (1971) (evidence insuffici

2018See State v. Tison, 129 Ariz. 526, 540 (1981) (record "replete with evidence" of concealment when defendants changed vehicles twice and painted and "partially buried" one of the vehicles); State v. Swinburne, 116 Ariz. 403, 414 (1977) (defendant used false names, shaved beard and dyed hair); State v. Ferrari, 112 Ariz. 324, 333 (1975) (defendant left the state and, upon return, "registered at a motel under an assumed name and listing a false occupation"); State v. Earby, 136 Ariz. 246, 248 (App. 1983) (defendant left the state); State v. Bailey, 107 Ariz. 451, 451-52 (1971) (evidence insuffici

2013Such an inference is reasonable here. ¶ 49 Parker cites State v. Bailey, 107 Ariz. 451 , 489 P.2d 261 (1971), which held a flight instruction unwarranted on the unique facts presented.

2023“Mere speculation that the jury was confused is insufficient to establish actual jury confusion.” State v. Gallegos, 178 Ariz. 1, 11 (1994). ¶18 On this record, the State presented sufficient evidence to warrant the flight instruction, and Herndon has not shown jury confusion.

2014And we view jury instructions as a whole to determine if they “adequately reflect the law.” State v. Gallegos, 178 Ariz. 1, 10 , 870 P.2d 1097, 1106 (1994) (citing State v. Haas, 138 Ariz. 413, 425 , 675 P.2d 673, 685 (1983)). ¶ 7 A flight instruction should only be given if the State presents evidence of flight after a crime from which jurors can infer a defendant’s consciousness of guilt.

2021State v. Ceja, 113 Ariz. 39, 41 (1976) (“We do not think that because a defendant left the scene of the offense and the instrument with which the offense was committed was never found that these circumstances justify the giving of a flight instruction.”).

1984The defendant claims there was no evidence of hot pursuit and therefore the flight instruction was not warranted, citing State v. Ceja, 113 Ariz. 39, 40-41 , 546 P.2d 6, 7-8 (1976).

2020State v. Solis, 236 Ariz. 285, 286, ¶ 6 (App. 2014); see State v. Anderson, 210 Ariz. 327, 343, ¶ 60 (2005). ¶11 Before the superior court may give a flight instruction, the State must present evidence of flight after a crime from which jurors may infer a defendant’s “consciousness of guilt for the crime charged.” State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013) (quoting State v. Edwards, 136 Ariz. 177, 184 (1983)).

2019"We review the trial court's decision to give a flight instruction for abuse of discretion." State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013); see also State v. Anderson, 210 Ariz. 327, 343, ¶ 60 (2005). ¶20 A flight instruction should only be given if the State presents evidence of flight after a crime from which jurors can infer a defendant's consciousness of guilt.

2020We review a trial court's decision to give an instruction, over objection, for an abuse of discretion, State v. Dann, 220 Ariz. 351, 363-64, ¶ 51 (2009), but we review constitutional issues de novo, State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). ¶27 If supported by the evidence, the flight instruction is not an improper comment on the evidence under Article 6, Section 27, of the Arizona Constitution.

2013State v. Dann (Dann II), 220 Ariz. 351, 363-64, ¶ 51 , 207 P.3d 604, 616-17 (2009).

2013See State v. Noleen, 142 Ariz. 101, 108 , 688 P.2d 993, 1000 (1984) (approving flight instruction where defendant left the state and abandoned his ear, even though police were not pursuing him and he used his own name when cheeking in at a motel).

2013See State v. Noleen, 142 Ariz. 101, 108 , 688 P.2d 993, 1000 (1984) (approving flight instruction where defendant left the state and abandoned his ear, even though police were not pursuing him and he used his own name when cheeking in at a motel).

2004Defendant additionally contends that the trial court erred in denying his motion to exclude the evidence on which the trial court based the giving of the flight instruction. ¶ 27 A trial court commits reversible error when it instructs on an issue or theory that is not supported by evidence because it “invites the jury to speculate as to possible non-existent circumstances.” Herman v. Sedor, 168 Ariz. 156, 158 , 812 P.2d 629, 631 (App.1991) (quoting Spur Feeding Co. v. Fernandez, 106 Ariz. 143, 148 , 472 P.2d 12, 17 (1970)).

2004Defendant additionally contends that the trial court erred in denying his motion to exclude the evidence on which the trial court based the giving of the flight instruction. ¶ 27 A trial court commits reversible error when it instructs on an issue or theory that is not supported by evidence because it “invites the jury to speculate as to possible non-existent circumstances.” Herman v. Sedor, 168 Ariz. 156, 158 , 812 P.2d 629, 631 (App.1991) (quoting Spur Feeding Co. v. Fernandez, 106 Ariz. 143, 148 , 472 P.2d 12, 17 (1970)).

2024Thus, Jones’ open flight from the crime scene supported the flight instruction. ¶29 A flight instruction is also proper when “the defendant engaged in some ‘eluding’ conduct that either was an attempt to prevent apprehension, or was an attempt to postpone apprehension in order to dispose of or conceal evidence that could tie him to the crime.” State v. Cutright, 196 Ariz. 567, 570, ¶ 12 (App. 1999) (citation omitted), overruled in part by State v. Miranda, 200 Ariz. 67 , 68–69, ¶¶ 4–5 (2001).

2023Running away or hiding after a crime has been committed does not by itself prove guilt. ¶40 Anderson contends the flight instruction was unwarranted because he did not leave the crime scene and his presence on the roof of his home when the police arrived at the scene “is insufficient to establish an inference of hiding or concealment.” “[J]ust because he was on the roof of his own home when the police arrived,” he insists, doesn’t prove he was “hiding.” ¶41 “Instructing on flight is proper when the defendant’s conduct manifests a consciousness of guilt.” State v. Cutright, 196 Ariz. 567, 570,

2019"The absence of any evidence supporting either of these findings would mean that the giving of an instruction on flight would be prejudicial error." Id. (citing State v. Castro, 106 Ariz. 78 (1970)); see also State v. Speers, 209 Ariz. 125, 132, ¶ 28 (App. 2004) (noting that the test requires that flight evidence allows the jury to "be able to reasonably infer from the evidence that the defendant left the scene in a manner which obviously invites suspicion or announces guilt"). ¶21 The flight instruction was warranted in this case.

2014“The absence of any evidence supporting either of these findings would mean that the giving of an instruction on flight would be prejudicial error.” Id. (citing State v. Castro, 106 Ariz. 78 , 471 P.2d 274 (1970)); State v. Speers, 209 Ariz. 125, 132, ¶ 28 , 98 P.3d 560, 567 (App.2004) (noting test requires that flight evidence allows jury to “ ‘be able to reasonably infer from the evidence that the defendant left the scene in a manner which obviously invites suspicion or announces guilt’”) (quoting State v. Weible, 142 Ariz. 113, 116 , 688 P.2d 1005, 1008 (1984)). ¶ 8 The flight instruction w

2020State v. Celaya, 135 Ariz. 248, 256 (1983) (citing State v. Hatton, 116 Ariz. 142 (1977)).

1983See State v. Hatton, 116 Ariz. 142 , 568 P.2d 1040 (1977).