Opinion
No. 2 CA-CR 2018-0234
12-10-2019
THE STATE OF ARIZONA, Appellee, v. NATHAN EARL LYME, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, Assistant Attorney General, Tucson Counsel for Appellee Flores & Clark PC, Globe By Daisy J. Flores and Ramai L. Alvarez 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201700454
The Honorable Lawrence M. Wharton, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee Flores & Clark PC, Globe
By Daisy J. Flores and Ramai L. Alvarez
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Nathan Lyme appeals from his conviction and sentence for theft of means of transportation. For the reasons that follow, we affirm.
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 Lyme. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In February 2017, Lyme, Portia D., and P.B. were using drugs and consuming alcohol at Portia's house in Casa Grande when Lyme told them he wanted to go and look at a car similar to his own to see if he could buy it for parts. Portia and P.B. drove Lyme to look at the car while Lyme's car—a "grayish-blue" 2005 Impala with black stripes on the sides and a gold Chevrolet logo on the front—remained at Portia's house. Lyme got out of Portia's car and told Portia and P.B. to go to a nearby convenience store while he spoke to the owner of the car about buying it.
¶3 The car in question, however, was actually a "bait car" owned by the Casa Grande Police Department and had been parked on the street in a residential area to combat high theft-related crime rates in that neighborhood. It was a gray 2004 Impala with a blue Chevrolet logo on the front, was missing the passenger-seat headrest, and had various items scattered throughout the passenger compartment, such as an air freshener around the gear shift, coins stuck to the surface of the middle compartment, and a toolbox on the backseat. The bait car's air conditioning, windows, and radio did not work, but there were no problems with the car's ignition when officers parked the car in the neighborhood. The officers left the front doors unlocked, and the only key to the car was secured at the police station. The car was equipped with a motion-detecting camera and a GPS tracker inside the toolbox on the backseat. The camera captured photographs of Lyme looking around inside the car, including inside the middle compartment, and at the ignition.
A "bait car" is part of a theft-intervention strategy used by police to apprehend individuals who break into cars and steal the items inside.
¶4 Shortly thereafter, Lyme drove the bait car to the convenience store where Portia and P.B. were waiting, activating the GPS tracker and notifying officers that the car was in motion. Lyme began to drive toward Portia's house, and Portia and P.B. followed him in Portia's car. Both Lyme and Portia passed Portia's house and kept driving.
¶5 A police officer responding to the GPS alert located the bait car on a road commonly used as a route for stolen cars and observed it traveling approximately one to two car lengths in front of Portia's car. After the officer turned on his emergency equipment, Portia's car, acting as a "heat car," twice swerved toward the center line in the roadway, preventing the officer from passing her and allowing Lyme to "speed[] away at a high rate of speed." The officer eventually passed Portia, caught up to Lyme, and initiated a traffic stop.
A heat car "distract[s] or delay[s] . . . a police officer from getting to a suspect or a vehicle doing some sort of illegal activity." The car "will either commit some sort of traffic violation or use some sort of driving behavior which delays that officer from . . . catching up to the suspect vehicle."
¶6 The officer approached the bait car with his gun drawn. As Lyme opened the driver's door, Portia pulled up behind the officer's car and started yelling, briefly distracting him. Lyme then got out of the car and took several strides "as if to run away." The officer ordered Lyme to stop, and Lyme complied by moving back toward the car and sitting in the driver's seat.
¶7 Lyme was arrested and searched. Although the bait car was still running with the ignition in the "on" position, no keys were found during the search of Lyme's person or the car, but a flat-head screwdriver was found underneath the driver's side of the car. An inspection of the car revealed marks on the outside of the ignition lock and damage to the inside of the lock, indicating that a tool had been inserted into it. The inspection also indicated the bait car's ignition could be turned over—and thus the car could be started—with any key or item such as a "Popsicle stick, screwdriver, scissors, [or] paper clip." Further testing showed the proper key to the car could not be removed while the car was running, but that a tool such as a flat-head screwdriver could be removed while the car's ignition remained in the "on" position.
¶8 Following a jury trial, Lyme was convicted of theft of means of transportation and sentenced to an 11.25-year prison term. 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).
Lyme was also charged with possession of burglary tools and possession of drug paraphernalia, but the state moved to dismiss the possession of drug paraphernalia charge without prejudice before trial, and the jury found Lyme not guilty of possession of burglary tools.
Discussion
¶9 On appeal, Lyme argues: (1) the trial court erred by instructing the jury on flight because the evidence was insufficient to support an inference of consciousness of guilt; (2) the court erred by failing sua sponte to provide a limiting instruction as to evidence of his drug use because such evidence was irrelevant and prejudicial; and (3) there was insufficient evidence to support his conviction because evidence of his guilt was presented primarily through an unreliable witness's testimony.
Flight Instruction
¶10 First, Lyme claims the trial court erred in providing a flight instruction to the jury because there was insufficient evidence that he had tried to flee on foot during the traffic stop or that his actions had indicated consciousness of guilt. After finding "[b]ased upon the totality of the circumstances . . . [and] the evidence from [the arresting officer] that . . . Lyme made an effort to leave the scene of the traffic stop," the court provided the following instruction over Lyme's objection:
The court noted that its decision was "not premised in any way on any items that may or may not have been left under the vehicle at any point in time," referring to the screwdriver found under the bait car when Lyme was apprehended.
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.We review the court's decision to give the flight instruction for an abuse of discretion. See State v. Parker, 231 Ariz. 391, ¶ 44 (2013).
¶11 "Flight" means voluntarily withdrawing oneself in order to evade arrest, detention, or the institution or continuance of criminal proceedings. State v. Rodgers, 103 Ariz. 393, 395 (1968). The propriety of a flight instruction depends on the facts of each case. State v. Speers, 209 Ariz. 125, ¶ 27 (App. 2004). A flight instruction is proper only if evidence of flight is presented from which jurors can infer a defendant's consciousness of guilt for the crime charged. State v. Solis, 236 Ariz. 285, ¶ 7 (App. 2014). Such an instruction is warranted if the evidence shows the defendant's flight or attempted flight was open, such as upon immediate pursuit, or if there is evidence of concealment. State v. Smith, 113 Ariz. 298, 300 (1976). In other words, the trial court must determine "whether there is evidence from which it can be reasonably inferred that 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, ¶ 12 (App. 1999), disapproved of on other grounds by State v. Miranda, 200 Ariz. 67 (2001).
¶12 Here, Lyme argues the officer's testimony does not indicate he attempted to flee because the officer testified Lyme "only took several strides and turn[ed] back towards the vehicle and [sat] in the driver's seat." Lyme asserts that because he "was not a significant distance from the immediate scene," his actions cannot be considered flight. But Lyme ignores the officer's testimony that Lyme only got back into the car after the officer moved toward him to give chase and ordered him to stop running. And, although distance is a relevant consideration in determining whether conduct is for the purpose of "eluding," it is not conclusive. Id. Under the facts of this case, we conclude the officer's testimony about Lyme's actions was sufficient to support the reasonable inference that he had attempted to flee.
¶13 Lyme appears to argue that the flight instruction was improper because he "testified to exiting the vehicle with a gun pointed at him and was scared." However, that Lyme presents an alternative explanation for his behavior does not preclude the otherwise appropriate flight instruction provided in this case. The evidence showed Lyme was driving a stolen car, and a police officer in a marked police unit pulled him over and approached him with gun drawn. See State v. Parker, 231 Ariz. 391, ¶ 50 (2013); State v. Hunter, 136 Ariz. 45, 49 (1983). The jury was free to disbelieve Lyme's explanation and infer that his movement away from the officer was evidence of flight reflecting consciousness of guilt. See State v. Earby, 136 Ariz. 246, 248 (App. 1983).
¶14 Lyme further contends there was insufficient evidence to show his actions resulted from a guilty conscience. But, the state presented evidence that Lyme had taken several strides "as if to run away" from the officer after he was pulled over for driving a stolen car, and after his friend used her car to perform blocking maneuvers to keep the officer at bay. Under the circumstances, this could reasonably be characterized as an open attempt to elude arrest demonstrating Lyme's consciousness of guilt. See Smith, 113 Ariz. at 300. The flight instruction was proper.
Limiting Instruction
¶15 Next, Lyme argues the trial court erred by failing sua sponte to provide a limiting instruction as to P.B.'s testimony about Lyme's use of illicit drugs because without such an instruction the testimony was inadmissible other-act evidence under Rule 404(b), Ariz. R. Evid. However, Lyme relies on the federal plain-error standard, and, because he fails to argue the alleged error was fundamental, he has waived this argument on appeal. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (argument waived where defendant does not argue unpreserved error was fundamental).
¶16 Moreover, even if Lyme had argued fundamental error, he could not have established any error, fundamental or otherwise. See State v. Henderson, 210 Ariz. 561, ¶ 23 (2005) (to establish fundamental error, defendant must first prove error). Well-established Arizona law provides that "if a defendant wants an instruction limiting the effect of certain evidence he must request it, and the failure of the trial court to so instruct is not error in the absence of a request therefor." State v. Taylor, 127 Ariz. 527, 530 (1980); State v. Evans, 88 Ariz. 364, 369 (1960); State v. Polan, 80 Ariz. 129, 131-32 (1956). In this case, Lyme did not request a limiting instruction as to evidence of his drug use. Thus, the court did not err in failing to provide one.
Sufficiency of the Evidence
¶17 Finally, Lyme argues there was insufficient evidence to support his conviction "[b]ecause the jury's verdict was necessarily based upon the word of a witness with questionable credibility and reliability." Specifically, Lyme asserts P.B. was not a credible witness because she had been consuming alcohol and using drugs on the date in question. We review the sufficiency of the evidence de novo, and in our review, we determine only whether a conviction is supported by substantial evidence. State v. Pena, 235 Ariz. 277, ¶ 5 (2014). In making this determination, we view the facts in the light most favorable to upholding the jury's verdict and will affirm if "a rational trier of fact could have convicted the defendant of the crime in question." State v. McGill, 213 Ariz. 147, ¶ 17 (2006); State v. Cox, 217 Ariz. 353, ¶ 22 (2007).
¶18 Substantial evidence is evidence that reasonable jurors could accept as adequate and sufficient to find the defendant guilty beyond a reasonable doubt. State v. Miller, 234 Ariz. 31, ¶ 33 (2013). Evidence, whether direct or circumstantial, is sufficient if reasonable minds can differ on the inferences to be drawn therefrom. State v. Landrigan, 176 Ariz. 1, 4 (1993). "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. Arredondo, 155 Ariz. 314, 316 (1987).
¶19 Lyme was charged with theft of a means of transportation under A.R.S. § 13-1814(A)(5). Therefore, the state was required to prove that Lyme knowingly controlled the bait car without permission and knew or had reason to know the car was stolen. See id.
¶20 P.B. testified that Lyme had said the car parked behind the convenience store "looked like an older model that he had and he wanted to check it out to see if he could buy it for some parts." P.B. further testified Lyme's car had still been at Portia's house when they left, there had been no "for sale" sign on the other car, and only ten minutes had passed between when she and Portia dropped Lyme off and when he drove the car to the convenience store. Based on the circumstances and her conversations with Lyme, P.B. testified she believed Lyme had stolen the car.
¶21 Lyme challenges the veracity of P.B.'s testimony. However, it is the jury's role to assess witness credibility. See State v. Clemons, 110 Ariz. 555, 556-57 (1974) ("No rule is better established than that the credibility of the witness and the weight and value to be given to their testimony are questions exclusively for the jury.").
¶22 Moreover, contrary to Lyme's assertion that the jury's verdict was primarily and necessarily based on P.B.'s testimony, the state presented more than sufficient evidence to sustain Lyme's conviction irrespective of such testimony. The evidence showed that police officers caught Lyme driving the bait car, owned by the police department, without permission. Given this evidence, a rational jury could have found that Lyme drove the bait car knowing or having reason to know the car was stolen in violation of § 13-1814(A)(5).
The state also highlighted the differences between Lyme's car and the bait car: the bait car was a gray 2004 Impala with a blue logo on the front, while Lyme's car was a lighter, "grayish-blue" 2005 Impala with black stripes on the sides and a gold logo on the front. The cars had different license plates and different rims, and the bait car contained various items that did not belong to Lyme, such as an air freshener, a toolbox, and coins stuck to the surface of the middle compartment. The bait car also had several distinct features, such as a missing headrest and non-working windows, air conditioning, and radio. --------
Disposition
¶23 For the foregoing reasons, we affirm Lyme's conviction and sentence.