Opinion
No. 1 CA-CR 13-0611
05-27-2014
STATE OF ARIZONA, Appellee, v. ISMAEL METZGER GAITAN, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.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.
Appeal from the Superior Court in Maricopa County
No. CR2012-154416-001
The Honorable Hugh E. Hegyi, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Legal Defender's Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Patricia K. Norris delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Kent E. Cattani joined.
NORRIS, Judge:
¶1 Ismael Metzger Gaitan timely appeals his convictions and sentences for possession or use of dangerous drugs, a class 4 felony, and two counts of possession of drug paraphernalia, both class 6 felonies. Gaitan argues the superior court should not have instructed the jury on flight or concealment of evidence because the trial evidence did not support the instruction. Reviewing for abuse of discretion, State v. Parker, 231 Ariz. 391, 403, ¶ 44, 296 P.3d 54, 66 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 180, 187 L. Ed. 2d 123 (2013), we disagree.
¶2 At the State's request, the superior court instructed the jury on flight or concealment of evidence as follows:
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. You may also consider the defendant'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.
¶3 A court may give a flight instruction if the defendant's conduct "manifests a consciousness of guilt." State v. Cutright, 196 Ariz. 567, 570, ¶ 12, 2 P.3d 657, 660 (App. 1999) (citations omitted), disapproved of on other grounds by State v. Miranda, 200 Ariz. 67, 69, ¶ 5, 22 P.3d 506, 508 (2001). The court must determine, depending on the facts of a particular case, whether the evidence supports a reasonable inference "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." Id.; see also
State v. Smith, 113 Ariz. 298, 300, 552 P.2d 1192, 1194 (1976) (court must determine whether evidence supports reasonable inference flight or attempted flight was open or defendant utilized element of concealment or attempted concealment (citation omitted)).
¶4 Here, the State presented sufficient evidence Gaitan had engaged in eluding conduct. After seeing Gaitan violate a traffic law at approximately 1:00 a.m., a Phoenix police officer pulled behind him in a marked patrol car and activated his overhead emergency lights and spotlight. Gaitan, however, did not stop and drove by multiple places he could have used to pull over. He then turned into a parking lot on the east side of the road. Even though the officer also activated his siren in addition to his emergency lights and spotlight, Gaitan continued to drive through the parking lot, driving eastbound, then northbound, and then back westbound toward the entrance of the parking lot. Although Gaitan eventually stopped in the parking spot closest to the entrance of the parking lot, he ignored the officer's implicit commands to pull over and required the officer to pursue him down the street and through the parking lot. On these facts, the superior court did not abuse its discretion by instructing the jury on flight.
¶5 For the foregoing reasons, we affirm Gaitan's convictions and sentences.