STATE v. RUBIO

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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 DIVISION ONE FILED: 07/31/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ELADIO LOPEZ RUBIO, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 11-0599 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-141318-001 The Honorable Connie Contes, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Linley Wilson, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix K E S S L E R, Judge ¶1 Defendant Eladio Lopez Rubio ( Rubio ) appeals his convictions and sentences on three counts of aggravated assault and one count of disorderly conduct for threatening his girlfriend and her parents at gunpoint when he arrived to pick up his infant son for visitation. For the reasons that follow, we affirm. DISCUSSION ¶2 Rubio discretion in first giving argues the the standard trial court flight or abused concealment its of evidence instruction, because he contends the instruction was not supported by the evidence.1 We review a trial judge s decision to give a flight instruction for abuse of discretion. State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). ¶3 when We find no such abuse of discretion in this case. A flight or concealment instruction is proper only the guilt. defendant s conduct manifests a consciousness of State v. Speers, 209 Ariz. 125, 132, 133, ¶¶ 27, 31, 98 P.3d 560, 567, 568 (App. 2004) (holding presence of passport and printout of flight itinerary in defendant s backpack did not 1 Over Rubio s follows: objection, the judge instructed the jury Flight or Concealment: 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. 2 as support flight instruction). Compare State v. Cota, 229 Ariz. 136, 142, ¶ 11, 272 P.3d 1027, 1033 (2012) (holding remoteness of flight eight days after the commission of the crime went to weight and not admissibility of flight evidence; such evidence is admissible to show consciousness of guilt if the defendant flees in a manner which invites suspicion or announces guilt). In Speers, as is true in this case, the instruction allowed the jury to consider evidence of running away, hiding, or concealing evidence in determining guilt, but instructed that such evidence does not by itself prove guilt. at 132, ¶ 26, 98 P.3d at 567. Speers, 209 Ariz. The decision whether such an instruction should be given is determined by the facts in a particular case. Id. at 132, ¶ 27, 98 P.3d at 567 (citation and internal quotation marks omitted). A two-fold test must be applied to determine whether a flight instruction is warranted: 1) the evidence must support a reasonable inference that the flight was open, such as the result of an immediate pursuit, or 2) the evidence must support the inference that the accused attempted concealment. State v. Wilson, 185 Ariz. 254, 257, 914 P.2d 1346, 1349 (App. 1996) (citation omitted). Evidence that a defendant left the scene of the crime by itself does not warrant an instruction on flight. ¶4 Id. Rubio testified that he left his girlfriend s house after he broke a door panel and heard someone say call the 3 police, because he thought it would look very bad for him to have a gun. The officer who arrested Rubio testified that when he arrived at Rubio s apartment complex, Rubio got out of a Cadillac in the parking lot and reached inside the trunk. Rubio ignored the officer s command to approach and ran up the stairs and into his apartment for a brief moment before reemerging. Police found the gun in the Cadillac s trunk and Rubio admitted during trial to having placed the gun in his trunk. ¶5 Rubio s testimony that he left the scene to avoid getting caught with the gun and his conduct in putting the gun in the Cadillac s trunk, coupled with his admission he did not want to be caught with a gun, provided sufficient evidence for the instruction. We find no abuse of discretion in the judge s decision to give the instruction. ¶6 Rubio also argues the trial court erred in sustaining, on hearsay grounds, objections to his testimony about statements purportedly made by his girlfriend s mother, preventing him from presenting a complete defense. criminal defendants complete defense. a [T]he Constitution guarantees meaningful opportunity to present a Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 476 U.S. 479, 485 (1984)). That right reasonable is not unlimited, restrictions, but including rather is evidentiary subject rules. United States v. Scheffer, 523 U.S. 303, 308 (1998). 4 to See Although we ordinarily discretion, we review review evidentiary evidentiary Confrontation Clause de novo. rulings rulings for that abuse of implicate the State v. Ellison, 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006). ¶7 As an initial matter, defense counsel failed to make an offer of proof of what Rubio s testimony would have been about statements purportedly made by his girlfriend s mother. Ordinarily, a ruling of a trial court excluding evidence cannot be reviewed on appeal in the absence of an offer of proof . . . . State v. Bay, 150 Ariz. 112, 115, 722 P.2d 280, 283 (1986). When, however, the substance of the evidence is apparent from the context within which questions were asked, we can consider a claim of error absent an offer of proof. See Ariz. R. Evid. 103(a)(2). ¶8 In context, it is apparent that Rubio would have testified that his girlfriend s mother said Rubio would not be allowed to take his infant son. The jury heard Rubio s recorded pre-trial police interview in which Rubio said his girlfriend s parents told him he could not see his child. It is clear from the context that Rubio would have testified his girlfriend s mother told him that he could not take his infant son. ¶9 At trial, the girlfriend s mother testified and denied telling Rubio that he could not see his infant son. meant the precluded testimony was 5 admissible to This denial impeach the credibility of the girlfriend s mother. In addition, the precluded testimony would have been admissible to show why Rubio was upset, a purpose that would not implicate the truth of the matter asserted. ¶10 On this record, however, we find that any error in precluding the statement was harmless. State v. Fulminante, 161 Ariz. 237, 250, 778 P.2d 602, 615 (1988) (holding any error in allowing the jury to hear prosecutor s argument on objection to his question prejudice). statements was harmless because the defendant suffered no It was no justification to the charged crimes that by the girlfriend s mother upset Rubio. We are convinced that the admission of this testimony would have had no effect on the jury s evaluation of the credibility of the girlfriend s mother. ¶11 First, in the pre-trial interview played for the jury, Rubio admitted to being upset when the girlfriend s parents said Rubio could not see his infant son. In closing, Rubio argued this statement caused him to become so upset that he broke the front door. Under these circumstances, testimony would have been cumulative. Rubio s precluded Second, at trial, Rubio flatly denied pulling his gun out of the holster and pointing it at anyone. The girlfriend s parents, however, both testified that Rubio pointed the gun at them. The girlfriend told police at the time of the incident that Rubio had pointed the gun at 6 her through a hole he made in the front door. On this record, we are convinced that any error in limiting Rubio s testimony on the precise statement the girlfriend s mother made to cause him to be upset had no impact on the verdict, and accordingly was harmless. CONCLUSION ¶12 For the foregoing reasons, we affirm Rubio s convictions and sentences. __/s/________________________ DONN KESSLER, Judge CONCURRING: __/s/______________________________ PATRICIA K. NORRIS, Presiding Judge _/s/_______________________________ SAMUEL A. THUMMA, Judge 7

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