Opinion
1 CA-CR 12-0009
02-26-2013
STATE OF ARIZONA, Appellee, v. DAVID LEE MATHIS, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Alice Jones, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Terry J. Adams, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-116518-001
The Honorable William L. Brotherton, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Alice Jones, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Terry J. Adams, Deputy Public Defender
Attorneys for Appellant
Phoenix PORTLEY, Judge ¶1 Defendant David Mathis appeals his conviction and sentence for aggravated assault. He contends the trial court erred by giving a flight instruction to the jury. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The victim was riding his bicycle in a Phoenix park. He saw Mathis, who was blocking the path with a shopping cart. The victim called out and asked Mathis to move the cart. Mathis refused, which caused the victim to stop short to avoid a collision. As the victim got up off the ground, Mathis stabbed him in the chest and slashed his fingers with a knife. The victim called 9-1-1, and Mathis was arrested. He was indicted and subsequently tried and convicted of aggravated assault. We have jurisdiction over his appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (West 2013).
DISCUSSION
¶3 Mathis contends the trial court erred by giving a standard flight or concealment instruction. We review the court's decision to give a jury instruction for an abuse of discretion. State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). "A party is entitled to an instruction on any theory reasonably supported by the evidence." Id. ¶4 "[A] flight instruction can be given only if there is evidence of open flight, as upon pursuit, or if there is evidence of concealment." State v. Lujan, 124 Ariz. 365, 371, 604 P.2d 629, 635 (1979); State v. Celaya, 135 Ariz. 248, 256, 660 P.2d 849, 857 (1983). Because merely leaving the scene of a crime is not evidence of flight, State v. Smith, 113 Ariz. 298, 300, 552 P.2d 1192, 1194 (1976), a flight instruction is proper only if the defendant's "manner of leaving . . . reveal[s] a consciousness of guilt." State v. Clark, 126 Ariz. 428, 434, 616 P.2d 888, 894 (1980). And, the existence of an alternative explanation for the defendant's behavior does not render a flight instruction inappropriate so long as the evidence supports a consciousness of guilt. See State v. Hunter, 136 Ariz. 45, 48-49, 664 P.2d 195, 198-99 (1983). ¶5 Here, after the victim called 9-1-1, Mathis began pushing his shopping cart away from the crime scene. The victim followed Mathis and told him several times that the police were coming. When told, Mathis changed his direction of travel and kept moving until the police arrived. ¶6 Mathis contends the flight instruction was given in error because he was merely pushing his shopping cart away from the area. Despite his claim, there was sufficient evidence for the trial court to conclude Mathis was attempting to avoid being caught by police. The jury was free to infer that his movement away from the crime scene reflected a consciousness of guilt. See State v. Earby, 136 Ariz. 246, 248, 655 P.2d 590, 592 (App. 1983). Consequently, the court did not abuse its discretion by giving the flight instruction.
CONCLUSION
¶7 Based on the foregoing reasons, we affirm.
______________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: ______________________
PATRICIA A. OROZCO, Judge
______________________
RANDALL M. HOWE, Judge