Opinion
2 CA-CR 2022-0094
11-09-2023
The State of Arizona, Appellee, v. Larry Eugene Bagby, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Rebecca Jones, Assistant Attorney General, Phoenix Counsel for Appellee Megan Page, Pima County Public Defender By David J. Euchner and Ian M. McCloskey, Assistant Public Defenders, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20210683001 The Honorable Brenden J. Griffin, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Rebecca Jones, Assistant Attorney General, Phoenix Counsel for Appellee
Megan Page, Pima County Public Defender By David J. Euchner and Ian M. McCloskey, Assistant Public Defenders, Tucson Counsel for Appellant
Judge Sklar authored the decision of the Court, in which Judge O'Neil and Judge Gard concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Larry Bagby appeals his conviction and sentence for aggravated assault with a dangerous instrument. Specifically, he challenges: (1) the trial court's decision to give a flight instruction; (2) the limiting instruction concerning the victim's cocaine use; (3) the enhancement of his sentence based on a prior conviction for a dangerous offense he contends was inadequately proven; and (4) the sufficiency of the evidence on the jury's finding that the aggravated assault was a crime of domestic violence. For the following reasons, we reject these arguments and affirm Bagby's conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to sustaining the jury's verdict and resolve all reasonable inferences against Bagby. State v. Nunn, 250 Ariz. 366, ¶ 2 (App. 2020). In February 2021, Bagby moved in with R.R. after having what R.R. called an "off and on" relationship with her for seven months. Apparently frustrated over his missing phone and keys, Bagby stabbed R.R. four times with a large kitchen knife-twice in her upper arm, once in her breast, and once in her right temple area. He also told R.R. that unless she had his belongings moved to his sister's house, he was "going to come back and kill [R.R.] for sure." Bagby then left Tucson for the Phoenix area, where he was later arrested.
¶3 The state charged Bagby with attempted first-degree murder, armed robbery, and aggravated assault. Before trial, and at the state's request, the trial court dismissed the robbery charge. After a four-day trial, the jury found Bagby not guilty of attempted murder but guilty of aggravated assault with a dangerous instrument. The jury found that the assault was a dangerous, domestic-violence offense.
¶4 After a priors trial, the trial court found that Bagby had previously been convicted of a dangerous offense-second-degree murder, which the trial court mistakenly referred to as manslaughter. His prior conviction for a dangerous offense subjected him to an enhanced sentencing range. See A.R.S. §§ 13-704(D), 13-1204(A)(2), (E). The court sentenced Bagby to fifteen years in prison. This appeal followed.
FLIGHT INSTRUCTION
¶5 Bagby first argues that the trial court erred in giving a flight instruction because no evidence supported it. We review the court's decision to give a flight instruction for an abuse of discretion. State v. Parker, 231 Ariz. 391, ¶ 44 (2013).
¶6 A trial court may give a flight instruction only if there is evidence that the defendant departed the scene or otherwise behaved in a manner from which jurors could reasonably infer consciousness of guilt. See id. The flight evidence must support a reasonable inference that the defendant's behavior "obviously invites suspicion or announces guilt." State v. Speers, 209 Ariz. 125, ¶ 28 (App. 2004) (quoting State v. Weible, 142 Ariz. 113, 116 (1984)). This can occur in either of two ways. The first is if the evidence "supports a reasonable inference that the flight or attempted flight was open, such as the result of an immediate pursuit." State v. Solis, 236 Ariz. 285, ¶ 7 (App. 2014) (quoting State v. Smith, 113 Ariz. 298, 300 (1976)). The second is if the evidence "support[s] the inference that the accused utilized the element of concealment or attempted concealment." Id. (quoting Smith, 113 Ariz. at 300).
¶7 On appeal, the state does not argue that the evidence supported an inference of open flight. It focuses instead on concealment, which encompasses concealment of either evidence or self. See State v. Cutright, 196 Ariz. 567, ¶ 9 (App. 1999), disapproved on other grounds by State v. Miranda, 200 Ariz. 67, ¶¶ 4-5 (2001). However, merely leaving the scene or engaging in subsequent travel is insufficient to support a flight instruction. Speers, 209 Ariz. 125, ¶ 28. Rather, the defendant must have "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." Cutright, 196 Ariz. 567, ¶ 12.
¶8 Here, sufficient evidence supported the inference that Bagby concealed himself. Shortly after the incident, Bagby traveled from Tucson to the Phoenix area. The circumstances of that travel suggest that Bagby was trying to elude police. For example, during a confrontation call approximately twelve hours after the stabbing, Bagby repeatedly told R.R. that he was no longer in Tucson and did not anticipate returning. However, he refused to tell R.R. where he was, despite her asking him. He also said he did not "think [he was] ever gonna see [R.R.] again." And he refused to return to R.R.'s apartment to pick up his belongings, saying instead, "You're just going to take all my stuff and keep it, huh?" and, "Everything I own is in your house." Given that he had been living at R.R.'s apartment, his refusal to return is strong evidence of concealment.
¶9 Bagby argues, though, that he left Tucson to live with his sister. But alternative explanations for a defendant's behavior do not make a flight instruction improper. See Parker, 231 Ariz. 391, ¶ 50. They instead go to the weight of the evidence. See id. ¶ 46.
¶10 Moreover, evidence beyond Bagby's departure for Phoenix also supported the flight instruction. Specifically, Bagby avoided seeking medical treatment for a large laceration that he sustained during the incident. During the confrontation call, he told R.R., "I lost a lot of blood too" and "I'm sick, and I don't have stitches, I'm just bleeding." He was not treated until after he was arrested, even though the injury was serious enough that the jail sent him to the hospital before admitting him. A jury could reasonably infer that Bagby's refusal to seek treatment arose from his desire to conceal information about the stabbing from medical providers and the police.
¶11 Bagby analogizes this case to Speers, in which we concluded that a flight instruction was improper. 209 Ariz. 125, ¶¶ 26-31. In Speers, the defendant's backpack had been found to contain his passport and information about possible round-trip travel between Phoenix and Portugal. Id. ¶¶ 5, 29, 31. That evidence was insufficient to support a flight instruction because it did not "rise to the level of evidence that makes guilt or suspicion obvious." Id. ¶¶ 30-31. We reasoned that although the defendant "may have thought about flight, his actions did not make him harder to find or camouflage his activities." Id. ¶ 31. Nor did they "demonstrat[e] the kind of 'eluding' behavior necessary to justify a flight or concealment instruction." Id. (quoting Cutright, 196 Ariz. 567, ¶ 12 (App. 1999)).
¶12 We are unpersuaded by Bagby's reliance on Speers. Unlike in Speers, where the evidence suggested that the defendant had been simply considering leaving Arizona, see id. ¶ 31, Bagby actually departed Tucson. More importantly, as we have described, he did so under circumstances that suggest an intent to conceal himself.
¶13 Bagby also analogizes this case to State v. Castro, 106 Ariz. 78 (1970), which involved a defendant who had walked away from the scene after cutting someone with a pocketknife. Our supreme court concluded that the trial court had erred by giving a flight instruction because the "record reveal[ed] no attempt by the appellant to conceal himself." Id. at 78-79. But here, as we have explained, Bagby undertook several actions that a jury could reasonably conclude constituted concealment. We therefore conclude that the trial court did not abuse its discretion in giving the flight instruction.
LIMITING INSTRUCTION
¶14 At trial, R.R. testified that she might have used cocaine on the day of the incident. Bagby agreed to a limiting instruction that directed the jury not to consider evidence of R.R.'s cocaine use for any purpose other than how it may have affected her "ability to perceive and recall events." On appeal, Bagby argues that the instruction also should have stated that the jury could consider this evidence to determine whether R.R. was the initial aggressor. Bagby acknowledges that because he did not raise the argument at trial, we review for fundamental error. See State v. Felix, 237 Ariz. 280, ¶ 13 (App. 2015) (reviewing unobjected to jury instruction for fundamental error).
¶15 Error is fundamental if it goes to the foundation of the case, takes away from the defendant a right essential to his defense, or is so egregious that the defendant cannot possibly receive a fair trial. State v. Escalante, 245 Ariz. 135, ¶ 21 (2018). "An error generally goes to the 'foundation of a case' if it relieves the prosecution of its burden to prove a crime's elements, directly impacts a key factual dispute, or deprives the defendant of constitutionally guaranteed procedures." Id. ¶ 18.
¶16 Bagby argues that the limiting instruction went to the foundation of the case because it directly impacted the key factual dispute of whether R.R. was the initial aggressor. We disagree. Although Bagby argued self-defense in his closing argument, he never claimed at trial that R.R.'s cocaine use was relevant to self-defense. Nor did he attempt to present testimony to suggest that R.R.'s cocaine use may have caused her to become violent. Additionally, as previously discussed, Bagby had agreed to the state's proposed limiting instruction directing the jury not to consider R.R.'s cocaine use for any purpose other than how it affected her ability to perceive and recall events. He never disputed until this appeal that R.R.'s cocaine use was relevant to whether she was the initial aggressor. Because this fact was not disputed, we conclude that the limiting instruction did not directly impact a key factual dispute. Thus, any resulting error was not fundamental.
EVIDENCE OF PRIOR CONVICTION
¶17 Next, Bagby argues that the trial court improperly enhanced his sentence based on inadequate evidence of a prior conviction for a dangerous offense. Under Section 13-704(D), an enhanced sentencing range applies to a defendant convicted of a class three dangerous felony if that defendant has one historical prior conviction for a class one dangerous felony. Bagby's aggravated-assault conviction was a class three dangerous felony. See A.R.S. § 13-1204(E). The prior conviction was a class one dangerous felony. See A.R.S. § 13-1104(C).
¶18 Bagby argues that at a priors trial, the trial court improperly admitted evidence of that prior conviction. He also argues that without that evidence, the state could not carry its burden of proving by clear and convincing evidence that he had previously been convicted of a dangerous offense.
¶19 We first address whether the trial court properly admitted evidence of the prior conviction. Generally, "[t]he proper procedure for establishing a prior conviction is for the state to submit a certified copy of the conviction and establish that the defendant is the person to whom the document refers." State v. Cons, 208 Ariz. 409, ¶ 16 (App. 2004).
¶20 Here, the state offered records from the Arizona Superior Court in Maricopa County. The records contained copies of documents from Bagby's prior conviction, including the complaint, indictment, related court information sheets, and plea agreement, as well as minute entries from the change-of-plea and sentencing hearings. Several of those documents, including the plea agreement and minute entries, indicate that the offense included a dangerousness enhancement. The documents were followed by a "Certification Page," which contained a printed image of the "Seal of the Superior Court in Maricopa Co., State of Arizona." Below the seal was a date-and-time-stamped attestation by a deputy clerk reading, "The foregoing instrument is a full, true and correct copy of the original on file in this office."
¶21 At the priors trial, the trial court concluded that the documents "look like they are originals" and admitted them over Bagby's objection. We review the court's evidentiary rulings for an abuse of discretion but interpret court rules de novo. See State v. Solis, 236 Ariz. 242, ¶ 5 (App. 2014).
¶22 Bagby argues that these prior conviction records were neither properly authenticated under Rule 901 of the Arizona Rules of Evidence, nor self-authenticating under Rule 902. We begin with Rule 901, which provides for the authentication of evidence if the proponent produces evidence "sufficient to support a finding that the item is what the proponent claims it is." Ariz. R. Evid. 901(a). Among the methods of doing so is presenting evidence that "a document was recorded or filed in a public office as authorized by law." Ariz. R. Evid. 901(b)(7). We have recognized that prior-conviction records may be authenticated through a proper showing under Rule 901(b)(7). State v. King, 213 Ariz. 632, ¶ 8 (App. 2006). Contrary to Bagby's assertion at oral argument, this authentication may occur through separate documentary evidence rather than live testimony. See King, 213 Ariz. 632, ¶ 10 (relying on cover letter from court clerk as evidence that conviction records were authentic).
¶23 The state relies on Rule 901(b)(7). Aside from the records at issue, the state points to other evidence and testimony showing the prior conviction. The evidence includes Arizona Department of Corrections records admitted at the priors trial. These records, which are commonly referred to as a pen pack, list Bagby's conviction, incarceration, and discipline history. The pen pack identifies Bagby's second-degree murder conviction, with a cause number, sentence date, and sentence length that match the court records at issue. It does not, however, list the dangerousness enhancement. Standing alone, it therefore cannot prove that Bagby had previously been convicted of a dangerous offense.
¶24 The pen pack also lists Bagby's personal identifying information. This includes his legal name and known aliases, date of birth, sex, race, height, weight, complexion type, hair color, eye color, and build type. Bagby's photograph and fingerprints were also attached. Also attached was an "In-State Exemplification," which attests that the copy of the pen pack, fingerprint card, and photograph are true and correct. It contains the notarized signature of the Arizona Department of Corrections Deputy Bureau Administrator. The pen pack is therefore self-authenticating under Rule 902(8). See Solis, 236 Ariz. 242, ¶¶ 2, 6-7, 15 (finding similarly signed and notarized pen pack to be self-authenticating and properly admitted). It follows that the trial court could consider the pen pack in determining whether the court records could be authenticated.
¶25 The state presented other evidence to authenticate the court records. A detective testified that Bagby was referenced in the pen pack and depicted in its photograph. The state also asked the trial court to take judicial notice that the height and weight of the person depicted in the pen pack matched Bagby's physical characteristics listed in the booking information sheet that was part of the case record. And the name and birth date of the person depicted in the pen pack matched Bagby's name and birth date as listed in the booking information sheet.
¶26 We agree with the state that the pen pack and detective's testimony were sufficient to authenticate the court records. Despite Bagby's contrary assertion at oral argument, the self-authenticating pen pack provided evidence that the prior conviction records had been "filed in a public office as authorized by law," as Rule 901(b)(7) requires. This is because A.R.S. § 31-221 requires the pen pack to contain "[a]ll information from the committing court." In addition, Rule 26.10(c)(5) of the Arizona Rules of Criminal Procedure requires the superior court to send sentencing orders to the department of corrections. See also Ariz. R. Crim. P. 28.1(a) (requiring superior court clerks to receive and maintain "all court filings and evidence admitted in criminal cases").
¶27 The pen pack also corroborated the information in the court records concerning Bagby's conviction. The court records supplied only the additional information that the conviction was for a dangerous offense. That information was reliable given that the pen pack otherwise corroborated the court records. And the detective's testimony allowed the trial court to conclude that Bagby was the person identified in the pen pack. Thus, sufficient evidence demonstrated that the court records were what the state claimed them to be. See Ariz. R. Evid. 901(a). The court properly admitted them. We therefore need not address whether the court records were also self-authenticating under Rule 902.
¶28 Having concluded that the records were properly admitted, we must next address whether the state carried its burden of proving that Bagby had been convicted of a dangerous felony. The state must prove a prior conviction for sentence enhancement purposes by clear and convincing evidence. State v. Robles, 213 Ariz. 268, n.1 (App. 2006). We conclude that the state carried its burden. The properly authenticated court records demonstrate that Bagby was convicted of second-degree murder with a dangerousness enhancement. Bagby presented no evidence or testimony to call into question those records' accuracy. Thus, he was properly sentenced.
FINDING OF DOMESTIC VIOLENCE
¶29 Finally, Bagby argues that the state produced insufficient evidence to support the jury's finding that the conviction for aggravated assault was a crime of domestic violence under A.R.S. § 13-3601. Although Section 13-3601 does not create a separate offense of domestic violence, the designation of a crime as a domestic-violence offense may have collateral consequences for a defendant. See State ex rel. McDougall v. Strohson, 190 Ariz. 120, 123-24 (1997).
¶30 "[S]ufficiency of the evidence is [a question] of law, subject to de novo review on appeal." Felix, 237 Ariz. 280, ¶ 30 (quoting State v. West, 226 Ariz. 559, ¶ 15 (2011)); see also State v. Allen, 253 Ariz. 306, ¶ 93 (2022) (noting that conviction not supported by evidence is fundamental error). In conducting this review, we view the evidence presented at trial in the light most favorable to sustaining the jury's findings and resolve all reasonable inferences against the defendant. Cf. Felix, 237 Ariz. 280, ¶ 30. "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Bustamante, 229 Ariz. 256, ¶ 5 (App. 2012) (quoting State v. Arredondo, 155 Ariz. 314, 316 (1987)). Although no cases apply these rules to a jury's finding that an offense constituted a domestic-violence offense, neither party has suggested applying different rules here. Nor do we see any basis for doing so.
¶31 Section 13-3601(A) provides the statutory definition of domestic violence. Generally, domestic violence exists when a specific type of crime has been committed against a victim who shares a specific type of relationship with the defendant. See § 13-3601(A). As relevant here, domestic violence may occur where the "relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship." § 13-3601(A)(6). In determining whether the victim and defendant shared a romantic or sexual relationship, the following factors may be considered: (a) the type of relationship; (b) the length of the relationship; (c) the frequency of the interaction between the victim and the defendant; and (d) if the relationship has terminated, the length of time since the termination. § 13-3601(A)(6)(a)-(d). The trial court accurately instructed the jury as to what constitutes a domestic-violence offense under this subsection.
¶32 Viewed as a whole, sufficient evidence supported the jury's finding that the crime was one of domestic violence. At trial, R.R. testified that Bagby was her "boyfriend off and on," that they were together for approximately seven months, and that they "were in a relationship." She also testified that Bagby had moved in with her seven days before the stabbing. And her testimony suggested that, at least for a portion of that time, he had a key to her apartment. He had also moved his belongings there.
¶33 In addition, during the confrontation call, Bagby repeatedly said he was sorry and called R.R. "baby" and "babe." R.R. asked Bagby during the call, "I thought you loved me.... Is that how you prove your love?" Bagby did not respond to her question and remained silent. Taken together, this evidence relates to at least the first three factors set forth in the statute. The fourth factor is arguably inapplicable given the nature of the relationship at the time of the stabbing.
¶34 Bagby, however, points to R.R.'s statements during cross-examination that their relationship was not sexual or romantic. Specifically, defense counsel questioned R.R., "So you were actually not quite boyfriend/girlfriend, were you?" R.R. replied, "Not especially, no." We agree that the jury could have concluded, based on this testimony, that Bagby and R.R. did not have a romantic relationship. But the jury was permitted to weigh conflicting parts of R.R.'s testimony differently. See State v. Bronson, 204 Ariz. 321, ¶ 34 (App. 2003) (jury is free to credit or discredit testimony). Given R.R.'s other testimony, her statements on cross-examination would not preclude the jury from concluding that she and Bagby had a romantic relationship as defined by the statute-even if she might have subjectively characterized the relationship differently. We therefore conclude that, viewing the evidence presented at trial in its entirety, sufficient evidence supported the jury's conclusion that the crime was one of domestic violence.
DISPOSITION
¶35 For the foregoing reasons, we affirm Bagby's conviction and sentence.