Opinion
No. 2 CA-CR 2019-0144
05-25-2021
THE STATE OF ARIZONA, Appellee, v. JOEL CORDOVA RODRIGUEZ, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20170336003
The Honorable Jeffrey T. Bergin, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. EPPICH, Presiding Judge:
¶1 Joel Cordova Rodriguez appeals from his convictions and sentences for first-degree murder and conspiracy to commit first-degree murder. On appeal, Rodriguez argues that the trial court erred by (1) admitting statements made by a co-conspirator under the excited utterance hearsay exception; (2) precluding evidence of the victim's purported abusive conduct; (3) denying his motion for a mistrial; and (4) providing the jury with a flight instruction. For the reasons that follow, we affirm Rodriguez's convictions and sentences.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against [Rodriguez]." State v. Felix, 237 Ariz. 280, ¶ 2 (App. 2015). In December 2016, Rodriguez, his sister Jessica, and Jessica's romantic partner Aaron, discussed a plan to kill Jessica's boyfriend, R.J. Consistent with the plan, Jessica picked R.J. up from the airport and alerted Rodriguez when they were near her house. While Rodriguez and Aaron waited for Jessica and R.J. to arrive, Rodriguez loaded a gun. After R.J. arrived at the house, Rodriguez got out of his car, a green Honda with a black hood and black right fender. He subsequently shot R.J. seven times before getting back in the car and speeding off.
Rodriguez, Aaron, and Jessica were all charged in connection with R.J.'s murder. Aaron and Jessica both pled guilty to manslaughter.
¶3 Rodriguez was charged with first-degree murder and conspiracy to commit first-degree murder. His defense at trial was that Aaron had committed the shooting and that he was merely present. A jury convicted Rodriguez as charged. The trial court sentenced him to two concurrent prison terms of natural life. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Discussion
Co-Conspirator's Excited Utterances
¶4 Rodriguez first argues the trial court erred in admitting statements that his co-conspirator Aaron had made to A.E. under the excited utterance exception to the hearsay rule. We will not disturb a ruling on "whether a particular statement was in fact an excited utterance" absent a clear abuse of discretion. State v. Adamson, 136 Ariz. 250, 255 (1983).
¶5 Before trial, Rodriguez filed a motion to preclude statements Aaron had made to A.E. In the exhibits referenced in Rodriguez's motion, A.E. described her relationship with Aaron as "friends with benefits." She stated that on the day of the murder, Aaron had arrived at her house and was "walking back and forth" saying, "I can't believe it, I can't believe it," "oh, my God, I can't believe it," and "his friend did it four times, four times . . . he was just standing there." She described that he was "freaking out," sweating, and "all red." She additionally described that the news was on and that he was "freaking out over it." Aaron subsequently asked A.E. to provide an alibi for him and paid A.E.'s electric bill in exchange. A.E. initially told police that Aaron had been home with her the entire day, but she later admitted he had left the morning of the murder and returned around 3 p.m.
¶6 At a hearing on the issue, Rodriguez argued the statements were not admissible under the excited utterance exception to the hearsay rule because they were "self-serving" and Aaron "had an opportunity to fabricate an exculpatory version of events prior to speaking with [A.E.], and it's a hastily-fabricated excuse." He argued that the trial court should consider, in evaluating the trustworthiness of the statements, that Aaron had "bribe[d]" A.E. to provide an alibi for him and that he had assaulted her within two months prior to the murder.
¶7 The state contended the statements were excited utterances because they related to a startling event, R.J.'s murder; Aaron was under the stress of excitement as evidenced by how A.E. described him reacting, "red," "sweaty," and "freaking out"; and the words were spoken "within moments of [Aaron] being outside of [Rodriguez's] custody," and "about 45 minutes" after the murder. Rodriguez countered that given Aaron's continued relationship with Jessica after the murder, as well as his "free- talk" plea agreement, these statements were "nothing more than an exculpatory, self-serving . . . attempt to exonerate himself."
¶8 After considering the arguments, motions, and relevant exhibits, the trial court denied Rodriguez's motion to preclude Aaron's statements, concluding that:
[T]he statements fall within the excited utterance hearsay exception . . . . And part of that is that from the information the Court has, it does appear that there was evidence of ongoing impact of the event. And in particular, the Court looked at State v. Anaya . . . . That's a 1990 appellate court case. The Defense's arguments may very well be appropriate argument, assuming there is supporting evidence at trial concerning those issues, but it is not a reason to exclude the statements.On appeal, Rodriguez argues this ruling was an abuse of discretion because, under the totality of the circumstances, Aaron's statements were self-serving, were exculpatory, and "[did] not meet the criteria for the excited utterance exception."
¶9 Hearsay is an out-of-court statement offered for the truth of the matter asserted. See Ariz. R. Evid. 801(c). Hearsay is generally inadmissible unless an exception applies. Ariz. R. Evid. 802. Regardless of whether the declarant is available to testify, under the excited utterance exception to the hearsay rule, if a "statement relating to a startling event or condition, [is] made while the declarant was under the stress of excitement that it caused," it is exempt from the rule against hearsay. Ariz. R. Evid. 803(2).
¶10 The "modern trend is toward a liberal interpretation of [the] exception." State v. Whitney, 159 Ariz. 476, 484 (1989). "The excited utterance exception is based upon the settled belief that excited utterances are reliable because they are uttered spontaneously at times of great excitement or stress and without time to contemplate or fabricate," State v. Carr, 154 Ariz. 468, 471 (1987), and that the "startling event[] stills the reflective faculties," State v. Rivera, 139 Ariz. 409, 411 (1984). Accordingly, to qualify as an excited utterance, there must be proof of: "(1) a startling event, (2) a statement made soon after the event to ensure the declarant has no time to fabricate, and (3) a statement which relates to the startling event." State v. Bass, 198 Ariz. 571, ¶ 20 (2000). The court looks to the totality of the circumstances to determine spontaneity. See State v. Beasley, 205 Ariz. 334, ¶ 30 (App. 2003).
¶11 First, Rodriguez argues Aaron did not have the same ability to be startled by R.J.'s murder because he was a co-conspirator and knew the plan was to kill R.J. He contends that in Carr, our supreme court "determined that because the event was premediated by the defendant, it would have been less startling to him than to a bystander." The state argues Aaron was sufficiently startled by the event based on his physical reactions and because he "did not expect that Rodriguez would carry out the shooting."
¶12 Contrary to Rodriguez's assertion, in Carr, our supreme court only observed that a premeditated event may be less startling to a defendant, but it actually assumed for the purpose of its analysis that the event was just as startling to the defendant as it would be to any other witness who observed the event. 154 Ariz. at 472. "Courts generally do not question the sufficiency of an event to startle once they are convinced the event produced the proper effect on the witness." State v. Cabrera, 250 Ariz. 356, ¶ 12 (App. 2021) (quoting Bass, 198 Ariz. 571, ¶ 25). Here, despite Aaron being a co-conspirator, the trial court clearly concluded that "there was evidence of ongoing impact of the event." This conclusion was supported by A.E.'s description that Aaron was pacing, "freaking out," red, and sweaty.
¶13 Second, Rodriguez argues that "[f]orty minutes between the murder and the statements made by [Aaron was] sufficient time for [Aaron] to have reflected on the events and fabricated a story." He contends Aaron must have reflected because immediately after making the statements in question, he "requested [A.E.] provide him with an alibi and offered to pay her for it," showing that he "clearly felt the need to conjure up some alibi or excuse for the murder when he walked into [A.E.'s] apartment."
¶14 As Rodriguez acknowledges, however, lapse of time is only one factor in analyzing an excited utterance. State v. Yslas, 139 Ariz. 60, 65 (1984). "The physical and emotional condition of the declarant is the important thing." Id. (quoting 1 M. Udall & J. Livermore, Arizona Practice: Law of Evidence § 127, at 270 (2d ed. 1982)). Even when there is enough time between the startling event and the statement for reflective thought, "[t]estimony that a declarant still appeared nervous or distraught and that there was a reasonable basis for continuing emotional upset can be sufficient proof of spontaneity." State v. Anaya, 165 Ariz. 535, 540 (App. 1990). As explained above, the trial court had information that Aaron appeared distraught and concluded "there was evidence of ongoing impact of the event." Aaron's physical and emotional responses, coupled with him having witnessed a murder, which is a "reasonable basis for continuing emotional upset," could sufficiently serve as proof of spontaneity despite the lapse of time. Id.
¶15 Regarding Aaron's offer to pay A.E. for an alibi, "our courts have not attempted to confine the application of the excited utterance exception solely to indisputably reliable statements." State v. Jeffers, 135 Ariz. 404, 419-20 (1983). Even if a witness's reliability has been "impugned," this does not foreclose the excited utterance hearsay exception because reliability goes to weight of the evidence, rather than admissibility. See id.
¶16 Third, Rodriguez does not contest that the statements Aaron made to A.E. related to the startling event. But he argues the statements could have been "prompted by something other than witnessing the crime" and it is "just as likely that [Aaron's] panicked state was a result of him realizing his need for an alibi and not shock from witnessing the murder."
¶17 "[A]n excited utterance must be attributable to the appropriate startling event before the admission of hearsay is justified." Bass, 198 Ariz. 571, ¶ 26. Therefore, we must "carefully determine whether the [declarant] 'may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue, or whether the nervous excitement had died away so that the remark is elicited by the shock of some other act not at issue . . . .'" Id. (quoting State v. Thompson, 169 Ariz. 471, 474-75 (App. 1991)).
¶18 Here, the trial court considered the argument that Aaron's statements could have been motivated by the need for an alibi, but concluded that "there was evidence of ongoing impact of the event." As explained above, this conclusion was supported by the record. Accordingly, under the totality of the circumstances, the court did not abuse its discretion in determining Aaron's statements were excited utterances, and thus, we conclude there was no error in the court admitting them. See Carr, 154 Ariz. at 472-73 (where both sides made colorable arguments and the court considers precisely what it is required to, its findings are not clearly erroneous).
Preclusion of Victim's Purported Abusive Conduct
¶19 Rodriguez next argues the trial court erred in granting the state's motion to preclude evidence of the victim's other acts, specifically, his purported abuse of Jessica. Before trial, the state filed a motion to "Preclude Irrelevant Prejudicial Attacks on the . . . Victim." The state argued that because Rodriguez was not raising a self-defense claim, any evidence of R.J.'s abusive history with Jessica was improper. Rodriguez countered that his theory of the case was Jessica had recruited Aaron to murder R.J. and that the jury "should at least know that Jessica was . . . going to claim that she was beaten by [R.J.]" so that they know "the reason he was shot." Rodriguez reasoned that either he or Aaron could testify to what was purportedly said "about the situation." The trial court granted the "spirit of" the state's motion, but stated:
However, based upon the arguments that were presented, . . . should a door open or a reason for the Court to revisit it, of course [the Court] will revisit it. And [Rodriguez's] comments concerning statements as to what may have been told concerning the reason for events occurring may very well be appropriate testimony coming forward. It's a little unclear, . . . murky at this point.The state asked whether Rodriguez could talk about R.J. assaulting Jessica in opening statements, and the court clarified that it had "not made a ruling" to the extent that evidence would be admissible. It stated that it was "a little unclear" and that if the parties wanted a more "specific, clear ruling" it would "need more information as to whether it would be appropriate in opening to discuss that," again suggesting that it would revisit the issue if it received more information.
¶20 On appeal, Rodriguez argues that the trial court erred in granting the state's motion and that evidence of R.J.'s abusive history with Jessica should have been admitted under Rule 404(b), Ariz. R. Evid., to show motive, knowledge, and intent for the murder. He additionally argues this evidence would have "complete[d] the story" for the jury and any statements regarding Jessica's motive for wanting to kill R.J. would be admissible as nonhearsay. The state counters that Rodriguez has prevented our review of this issue by failing to offer the specific statements he sought to introduce at trial.
The state also argues that Rodriguez has waived review of this claim because the evidence was not offered on Rule 404(b) or nonhearsay grounds at trial and, on appeal, he has not argued fundamental, prejudicial error. Because there is insufficient proof to permit review, we need not address waiver or the merits of these arguments.
¶21 Preliminarily, we observe that it appears the trial court did not actually preclude this evidence; rather, it sought more information before ruling that the evidence would be admissible. Rodriguez does not point to anywhere in the record where he re-raised this issue, and when a juror asked, "[W]hat reason or reasons did Jessica give for wanting [R.J.] dead," Rodriguez objected to the question. However, even assuming the court did preclude this evidence, we agree with the state that we "lack[] the necessary information to review Rodriguez'[s] claim."
Given our determination that Rodriguez failed to make an adequate proffer, we need not decide whether he waived the issue by objecting to the introduction of the very evidence he claims was improperly precluded.
¶22 A party may only claim error in a ruling excluding evidence if "the error affects a substantial right of the party and . . . a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context." Ariz. R. Evid. 103(a)(2). If evidence is excluded, the proponent must make an offer of proof "so that the reviewing court can determine whether the trial judge erred in precluding the evidence." State v. Towery, 186 Ariz. 168, 179 (1996).
¶23 Rodriguez acknowledges that "[i]t is difficult to know exactly how the evidence would have come in without knowing exactly what the statements in question were," but he nevertheless argues that any evidence of R.J.'s abusive conduct towards Jessica would be admissible and that the offer of proof requirement is met because the "nature and substance of the excluded testimony was clear from the context." See Ariz. R. Evid. 103(a)(2). We disagree.
¶24 Rodriguez's representations that Jessica claimed R.J. had "beaten" her lack reasonable specificity necessary for appellate review, as we do not know what the statements were, who would testify to them, or whether the evidence would otherwise be admissible. See Towery, 186 Ariz. at 179 ("At a minimum, an offer of proof stating with reasonable specificity what the evidence would have shown is required."); State v. Dixon, 226 Ariz. 545, ¶ 44 (2011) (where counsel made claims as to a diary's contents but made no offer of proof as to what the diary said nor marked the diary for identification, appellate court had no basis for determining what was excluded); see also Ariz. R. Evid. 403 (court may exclude relevant evidence if "probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence"). As the trial court itself observed, there is not enough information in the record to determine whether the evidence would be admissible. Accordingly, Rodriguez may not claim error. See Ariz. R. Evid. 103(a)(2).
And, in any event, Rodriguez has failed to demonstrate prejudice by adequately explaining why the victim's purported abuse of Jessica would make it more likely that Aaron, her romantic partner, was the killer than was Rodriguez, her brother.
Denial of Motion for Mistrial
¶25 Rodriguez next argues the trial court erred in denying his request for a mistrial. We review the denial of a request for a mistrial for an abuse of discretion. State v. Miller, 234 Ariz. 31, ¶ 23 (2013); see also State v. Jones, 197 Ariz. 290, ¶ 32 (2000) (trial judge has broad discretion in determining mistrial motion).
¶26 When Aaron was testifying at trial, the following exchange occurred:
[State:] Mr. [Aaron], you're appearing before us here today in a black and white uniform there. Can you tell us why?Rodriguez subsequently asked for a mistrial or, alternatively, requested the "answer be stricken and the jury be told what something that is stricken means from the bench." The state responded that Aaron's statement did not merit a mistrial because it was unanticipated and did not indicate Rodriguez or someone associated with Rodriguez had threatened Aaron. The court denied the mistrial request but instructed the jury that it was "striking [Aaron's] answer to the first question which suggested that there had been threats." The court further explained, "What that means is that that is not evidence and should not be considered by you in any matters going forward."
[Aaron:] I have been threatened.
[Rodriguez:] Objection to that, Your Honor.
The Court: Sustained.
[State:] My question is, are you in the Pima County Jail?
[Aaron:] Yes, sir.
Rodriguez agreed at trial that Aaron's statement was unanticipated.
¶27 A mistrial is "the most dramatic remedy for trial error" and should be granted only when the interests of justice require the jury to be discharged and a new trial be granted. State v. Dann, 205 Ariz. 557, ¶ 43 (2003) (quoting Adamson, 136 Ariz. at 262). When a witness "unexpectedly volunteers" inadmissible testimony, it is the trial court's discretion to determine if "some remedy short of mistrial will cure the error." Miller, 234 Ariz. 31, ¶ 25 (quoting Adamson, 136 Ariz. at 262). To determine whether a mistrial is appropriate, the court should consider if the jury improperly heard something and, if so, the chances that what it heard influenced it. Id. (quoting State v. Laird, 186 Ariz. 203, 207 (1996)).
¶28 On appeal, Rodriguez argues the jury may have been prejudiced by Aaron's statement because witness credibility was "paramount" to its determination and the statement made Aaron's testimony more reliable because "he was threatened." Rodriguez further reasons that the statement made his own testimony less reliable because "it would seem like he [was] trying to cover something up." Thus, he argues, the trial court's curative instruction was inadequate. The state responds that the court's instruction cured any prejudice.
¶29 Our supreme court's opinion in State v. Lamar is instructive. 205 Ariz. 431 (2003). There, the court concluded that the trial court's refusal to grant a mistrial was not an abuse of discretion when a witness made an arguably inadmissible, and incomplete, statement about being threatened that did not clearly implicate the defendant and, in response, the court gave a curative instruction. Id. ¶¶ 39-43. Our supreme court noted that for the witness's statement to be prejudicial to Lamar, the jury would have to believe that he had adopted or joined in the threat referenced in the statement, and the court observed that because the link was "extremely tenuous," it was "highly improbable" the jury had made that inference. Id. ¶¶ 41-42. It further concluded that the trial court's curative instruction "sufficiently overcame any probability that the jury would conclude that Lamar had joined in the threat." Id. ¶ 43.
¶30 Rodriguez argues Lamar is distinguishable because, in the context of this case, the statement was prejudicial character and credibility evidence from which the jury could infer that he had a "propensity for violence" and "wanted to manipulate [Aaron's] testimony." We are not persuaded that Lamar is so meaningfully distinguishable as to require a mistrial in this case. First, in Lamar, there were multiple co-defendants but the shooting itself involved only two people, Lamar and Macchirella. Id. ¶¶ 5-11, 15 (both accused each other of shooting the victim, and both claimed to have shot the victim). Similar to the circumstances here, the evidence against Lamar included Macchirella's testimony, which he gave as part of a plea agreement. Id. n.1 & ¶ 32.
¶31 Second, Aaron's general statement, "I have been threatened," is arguably less prejudicial than the more specific statement in Lamar, where the witness testified she had been threatened in the presence of Lamar when a co-defendant said "they [were] going to bury [her] next to—." Id. ¶ 38. Further, Rodriguez concedes on appeal that the link between Aaron's statement and him was tenuous. Therefore, it is improbable that Aaron's statement improperly influenced the jury. As in Lamar, the trial court here sustained Rodriguez's objection to the statement and instructed the jurors in unambiguous terms that they were not to consider it. See id. ¶¶ 42-43. Thus, any improper influence that may have existed with respect to that statement was sufficiently cured by the court's instruction. See id. ¶¶ 41-43; see also State v. Newell, 212 Ariz. 389, ¶ 68 (2006) (jury is presumed to follow the court's instructions).
Although Rodriguez subsequently contends that a "strong link" existed between Aaron's statement and him and that his case is distinguishable from Lamar because in Lamar there were more co-defendants, these arguments are raised for the first time in his reply brief and are thus waived. See State v. Brown, 233 Ariz. 153, ¶ 28 (App. 2013) (arguments raised for first time in reply brief are waived).
Flight Instruction
¶32 Rodriguez's final argument on appeal is that there was insufficient evidence for the trial court to give the jury a flight instruction. We review a court's decision to provide a flight instruction for an abuse of discretion. State v. Parker, 231 Ariz. 391, ¶ 44 (2013).
¶33 After shooting R.J., Rodriguez sped away in his car. He stopped at a dumpster, disposed of some of the clothes he was wearing, and asked Aaron to dispose of masks and gloves. He then drove home to Phoenix, even though he had planned to stay in Tucson to pick up his wife. And, the day after the murder, he changed his car's license plate. When he spoke with police, he lied about being in Tucson and about the reason for changing his license plate.
¶34 At trial, Rodriguez objected to the jury being provided a flight instruction arguing the evidence presented was insufficient to support it. The state argued that Rodriguez's actions were "obviously to conceal his identity, to prevent the police from apprehending him." The trial court considered the parties' arguments and, over Rodriguez's objection, instructed the jury:
In determining whether the state has proved [Rodriguez] guilty beyond a reasonable doubt, you may consider any evidence of [Rodriguez]'s running away, hiding or concealing evidence, together with all other evidence in the case. You may also consider [Rodriguez]'s reasons for running away, hiding, or concealing evidence. Running away, hiding, or concealing evidence after a crime has been committed does not by itself prove guilt.
¶35 To determine whether a flight instruction may be given, the trial court must determine whether the evidence supports "a reasonable inference that the flight or attempted flight was open, such as the result of an immediate pursuit" or whether the evidence supports "the inference that the accused utilized the element of concealment or attempted concealment." State v. Smith, 113 Ariz. 298, 300 (1976). In other words, the court must "be able to reasonably infer from the evidence that the defendant left the scene in a manner which obviously invites suspicion or announces guilt." State v. Speers, 209 Ariz. 125, ¶ 28 (App. 2004) (quoting State v. Weible, 142 Ariz. 113, 116 (1984)); see also State v. Solis, 236 Ariz. 285, ¶ 7 (App. 2014) (flight instruction only permissible if jurors can infer consciousness of guilt).
¶36 Evidence that only shows a defendant left the scene of a crime or went home is not sufficient for a flight instruction. Smith, 113 Ariz. at 300 (defendant only left the scene of crime); State v. Bailey, 107 Ariz. 451, 452 (1971) (defendant only returned to home state after visiting area where crime occurred). However, if the manner of leaving the scene reveals a consciousness of guilt, the instruction is permissible. See State v. Lujan, 124 Ariz. 365, 371 (1979) (running away from scene of crime may show guilty conscious and pursuit is not required).
¶37 Here, the evidence supported a flight instruction. Rodriguez did not merely leave the scene of the crime nor return home. Multiple witnesses testified that they saw a car speed away from the scene of the murder, and it is undisputed that Rodriguez was driving. Rodriguez also testified that, despite original plans to remain in Tucson, he went back home to Phoenix.
Although Rodriguez argues he "did not actively flee from police officers," this is immaterial. See Lujan, 124 Ariz. at 371 ("Even without pursuit, defendant's manner of leaving may manifest consciousness of guilt.").
Rodriguez also argues that because there was a "wide" range of speeds testified to by witnesses and because his car on a dirt road may have given the appearance of speed there was no suggestion of a "consciousness of guilt." Because these arguments are raised for the first time in his reply brief, they are waived. See Brown, 233 Ariz. 153, ¶ 28.
¶38 The instruction was also supported by Rodriguez's concealment of evidence. First, there was testimony that after the murder he disposed of some of the clothing he was wearing in a dumpster and asked Aaron to dispose of masks and gloves. See State v. Salazar, 173 Ariz. 399, 409 (1992) (flight instruction proper when defendant ran from crime scene and discarded his shoes). Second, he changed his license plate a day after the murder. See State v. Thornton, 187 Ariz. 325, 334 (1996) (concealment does not need to be immediate for flight instruction to be proper).
¶39 Although he acknowledges he "thr[e]w away some clothing items," Rodriguez makes no argument as to how the disposal of clothing was insufficient to support the flight instruction. Rather, he argues that "[a]lmost all of his behavior indicates he did not try to conceal evidence from the authorities" because he retained the old license plate, spoke with police on multiple occasions, did not leave the state, and did not attempt to conceal or significantly change his distinctively painted car. However, effective concealment is not required before the provision of a flight instruction, an attempt to conceal is sufficient. See Solis, 236 Ariz. 285, ¶ 7; see also Thornton, 187 Ariz. at 334 ("lack of success does not make a flight instruction inappropriate"). There was sufficient evidence that Rodriguez "utilized the element" of attempted concealment. Accordingly, the trial court did not abuse its discretion in providing the instruction. See Smith, 113 Ariz. at 300.
Disposition
¶40 For the foregoing reasons, we affirm Rodriguez's convictions and sentences.