Opinion
1 CA-CR 22-0413
05-23-2023
STATE OF ARIZONA, Appellee, v. MICHAEL DEFRAN MICHAUX, Appellant.
Arizona Attorney General's Office, Phoenix By Brian R. Coffman Counsel for Appellee The Law Office of Kyle Green, Tempe By Kyle Green Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County No. V1300CR202180097 The Honorable Michael R. Bluff, Judge
Arizona Attorney General's Office, Phoenix By Brian R. Coffman Counsel for Appellee
The Law Office of Kyle Green, Tempe By Kyle Green Counsel for Appellant
Vice Chief Judge David B. Gass delivered the decision of the court, in which Judge Brian Y. Furuya and Judge Andrew M. Jacobs joined.
MEMORANDUM DECISION
GASS, VICE CHIEF JUDGE
¶1 Michael Michaux appeals his misdemeanor conviction and sentence for disorderly conduct as a domestic violence offense. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to upholding the superior court's verdict, resolving all inferences against Michaux. See State v. Reaves, 252 Ariz. 553, 558 ¶ 2 (App. 2022).
¶3 At 10:44 p.m., a woman called 911 from a hotel lobby and reported her "boyfriend attacked [her]" and "was trying to kill [her]." She also told the 911 operator she and her boyfriend were "breaking up." When the operator asked how her boyfriend attacked her, the woman said her boyfriend asked her to lie down with him and then put her in a chokehold. The woman told the operator her boyfriend then said, "Oh, we're parting ways. But I'm gonna beat the fuck out of you first. And if you survive tonight, if you survive, then da da da."
¶4 A deputy sheriff reached the hotel at 10:47 p.m. and found the woman, later identified as E.W., in the hotel lobby. The deputy sheriff observed E.W. was "frantic, panting, [and] excited." The deputy also noted E.W.'s hands were shaking and "appeared to be bloodied and/or injured[,]" her voice was "shaky," and it "appeared as though she had urinated on herself."
¶5 Once a backup deputy sheriff arrived, the two deputies started looking for E.W.'s boyfriend. They began by searching the hotel room but did not find the boyfriend there. The deputies then spotted a vehicle in the hotel parking lot that had not been there when they arrived. They saw a person, later identified as Michaux, in the driver's seat. Michaux was covered with blankets and appeared to be sleeping. Upon a deputy's request, Michaux exited the vehicle and cooperated. The deputy noted Michaux seemed to have an injured foot.
¶6 The deputies arrested Michaux and read him his Miranda rights. One deputy then asked him what happened. At first, Michaux responded he did not know, but then said E.W. "freaked out" and yelled at him and he left. He then clarified he and E.W. were laying on a sofa bed in the hotel room, with E.W. to Michaux's left and "on his ribs." According to Michaux, E.W. freaked out because she misunderstood something Michaux said. Michaux also said E.W. jumped up from the sofa bed, and at some point in the excitement of the altercation, he grabbed the front of E.W.'s shirt to look her in the face. At that point, E.W. bit Michaux's finger and he left the hotel room. Michaux decided to go to his truck and sleep. He added he had not left the parking lot after he came out of the hotel room.
¶7 A grand jury indicted Michaux for: (1) kidnapping, a class two felony; (2) aggravated assault, a class six felony; (3) disorderly conduct, a class one misdemeanor; and (4) assault, a class one misdemeanor.
¶8 E.W. did not testify at trial. The State proposed playing E.W.'s 911 call. Michaux objected. The superior court allowed the State to play a redacted portion of E.W.'s 911 call after finding this portion was an excited utterance and not subject to exclusion under the confrontation clause of the Sixth Amendment. The superior court also allowed the deputy to testify about his observations of E.W. at the scene.
¶9 After a jury trial, the jury found Michaux guilty of disorderly conduct as a domestic violence offense but acquitted him of all other charges. The superior court suspended his sentence and imposed two years of supervised probation.
¶10 This court has jurisdiction over Michaux's timely appeal under article VI, section 9, of the Arizona Constitution, A.R.S. § 12-120.21.A.1, and A.R.S. §§ 13-4031, -4033.A.
ANALYSIS
I. The superior court did not err when it admitted the redacted 911 call.
¶11 Michaux argues the superior court erred when it admitted the redacted 911 call because it was inadmissible hearsay and was testimonial. See Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (clarifying the "primary object" of the Sixth Amendment of the U.S. Constitution is testimonial hearsay). The State argued, and the superior court found, the redacted 911 call fell within the excited utterance exception to the hearsay rule and was not subject to exclusion under the confrontation clause because it involved nontestimonial statements.
¶12 This court reviews de novo evidentiary rulings implicating the confrontation clause. State v. Bocharski, 218 Ariz. 476, 487 ¶ 33 (2008) (addressing violations of U.S. Const. amend. VI). The confrontation clause generally prohibits "admission of testimonial evidence from a declarant who does not appear at trial unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant." State v. King, 213 Ariz. 632, 638 ¶ 17 (App. 2006) (discussing Crawford, 541 U.S. at 68). This prohibition applies to all testimonial statements, even those otherwise subject to hearsay exceptions. See Crawford, 541 U.S. at 53-54.
¶13 The Crawford rule, however, does not apply to nontestimonial statements. See Michigan v. Bryant, 562 U.S. 344, 354 (2011). A statement is "nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id. at 356. To determine the "primary purpose of the interrogation," the superior court must examine the "statements and actions" of all participants and the "circumstances in which the encounter occurred." Id. at 360. When a 911 call involves mainly "loud cries for help," it is nontestimonial, and its admission does not violate the confrontation clause even if the declarant does not testify. State v. King, 212 Ariz. 372, 378 ¶ 29 (App. 2006).
¶14 Michaux argues the redacted 911 call is inadmissible hearsay because it does not meet the requirements of present sense impression. But the superior court admitted the redacted 911 call as an excited utterance, not a present sense impression. We find no error in the superior court's decision. See Ariz. R. Evid. 803(2) (establishing exception to the rule against hearsay for statements "relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused"). The portion the court admitted was limited to the first 1 minute and 46 seconds of the 911 call. As the superior court noted, the victim was excited, describing an ongoing emergency, and "clearly [making] a loud cry for help."
¶15 We next examine whether the redacted 911 call involved nontestimonial statements. See King, 212 Ariz. at 378 ¶ 29. It did. Taken in the context of a report being made to a 911 operator, the 911 operator's questions and E.W.'s answers were intended to enable police assistance to meet an ongoing emergency. See id. Significantly, as the superior court recognized, the dialogue began with E.W.'s clear "loud cry for help." Because the admitted portion of the 911 call constituted E.W.'s excited utterance and was nontestimonial, the superior court did not err by admitting it.
II. Sufficient evidence supports the jury verdict.
¶16 Michaux contends insufficient evidence supported his conviction for disorderly conduct as a domestic violence offense. This court reviews claims of insufficient evidence de novo. State v. West, 226 Ariz. 559, 562 ¶ 15 (2011). To obtain relief, Michaux must show the record lacks "substantial evidence" supporting his conviction. See State v. Pena, 235 Ariz. 277, 279 ¶ 5 (2014). "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Mathers, 165 Ariz. 64, 67 (1990) (cleaned up).
¶17 As charged here, disorderly conduct as a domestic violence offense requires proof Michaux "with intent to disturb the peace or quiet of a person" he is currently or was previously involved with in a romantic or sexual relationship, engaged in "fighting, violent or seriously disruptive behavior." See A.R.S. §§ 13-2904.A (disorderly conduct), -3601.A.6 (domestic violence offense).
¶18 Michaux argues the State presented no evidence: (1) Michaux was the person E.W. referred to in the redacted 911 call; (2) he was in a romantic or sexual relationship with E.W.; (3) E.W. was at peace when the fighting, violent, or seriously disruptive behavior occurred; and (4) he disturbed E.W.'s peace. When looking at the evidence as a whole, including the consistency between what E.W. and Michaux described, we find no error.
¶19 True, E.W. did not name Michaux in the redacted 911 call admitted into evidence. And Michaux also did not name E.W. in his statements to the deputy sheriff describing their altercation. But the hotel surveillance videos linked them together, showing E.W. and Michaux walking to the same truck within 12 minutes of each other, and the deputies later found Michaux in that same truck.
¶20 In the redacted 911 call, E.W. said she was on the bed cuddling with "her boyfriend" when he put her in a choke hold. She then claimed he "attacked" her, "was trying to kill" her, and said, "Oh, we're parting ways. But I'm gonna beat the fuck out of you first. And if you survive tonight, if you survive, then da da da." Consistent with E.W.'s statements, Michaux said he went out with a woman that night, and when they got back to the hotel room, the woman made dinner while he took a bath. Both E.W. and Michaux said they were lying on a sofa or sofa bed before the altercation. When describing the altercation, Michaux also referred to the woman involved, E.W., as "baby."
¶21 As a final point, Michaux admitted he was high, had been drinking, and grabbed the front of the woman's shirt. Photos of E.W. showed blood and injuries. And when the deputy sheriff transported Michaux to jail, Michaux used E.W.'s first name when he asked the deputy if E.W. was injured.
¶22 Though Michaux painted a different scene for the deputy, the jury appears to have found E.W.'s account more credible. This court cannot reweigh the evidence and set aside a jury verdict just because the jury could have drawn different inferences or conclusions. Flanders v. Maricopa Cnty., 203 Ariz. 368, 371 ¶ 5 (App. 2002).
¶23 On this evidence, a reasonable jury could have concluded E.W.'s statements in the redacted 911 call referred to Michaux, they were in a romantic or sexual relationship, and Michaux disturbed E.W.'s peace by making threatening statements, grabbing her shirt, and attacking her. Sufficient evidence, thus, supports the jury's verdict.
III. The superior court did not abuse its discretion by giving the jury a flight instruction.
¶24 Last, Michaux argues this court should reverse his conviction because the superior court caused him prejudice by erroneously giving the jury a flight instruction.
¶25 This court reviews the superior court's decision to give a jury instruction for an abuse of discretion. State v. Johnson, 205 Ariz. 413, 417 ¶ 10 (App. 2003). 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 (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, 635 (1979). If an accused's manner of leaving the scene does not suggest consciousness of guilt, the State must present evidence to support the inference the accused attempted to avoid detection. See State v. Hunter, 136 Ariz. 45, 49 (1983).
¶26 In the redacted 911 call, E.W. said she told her boyfriend if he hurt her, he would go to jail, and her boyfriend replied, "Yeah, that's if they catch me." And a surveillance video showed Michaux using a crutch to walk from the hotel room to the truck and drive away out of the camera's frame. Another surveillance video showed the truck parked in a parking lot farther away from the hotel room than it was before. Though Michaux left, he told the deputies he had been in the hotel parking lot the entire time. Moreover, when the deputies found Michaux in the truck, he had completely covered himself with a blanket. On this record, the jury reasonably could find flight or concealment indicating consciousness of guilt. See State v. Almeida, 238 Ariz. 77, 80 ¶ 9 (App. 2015) (the "slightest evidence" is sufficient to give a jury instruction).
¶27 Michaux argues no evidence shows flight or an attempt to hide because he walked to the truck "at a slower than normal pace, not like someone running from the law[,]"cooperated with the deputies, and never left the hotel parking lot. But Michaux's explanation for his flight did not preclude the superior court from giving a flight instruction. See State v. Parker, 231 Ariz. 391, 404 ¶ 50 (App. 2013); see also Hunter, 136 Ariz. at 49. Rather, his explanation created a question of fact for the jury to resolve. See Parker, 231 Ariz. at 404 ¶ 50.
¶28 The superior court, thus, did not abuse its discretion in giving the jury a flight instruction.
CONCLUSION
¶29 We affirm.