STATE v. HANNON

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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.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 DIVISION ONE FILED: 10/16/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ROBIN DENIS HANNON, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0875 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-120784-001 DT The Honorable Karen L. O Connor, Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Division Chief Counsel, and Joseph T. Maziarz, Section Chief Counsel Criminal Appeals Section Attorneys for Appellee Phoenix Marty Lieberman, Office of the Legal Defender by Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant Phoenix H O W E, Judge ¶1 Robin Denis aggravated assault. Hannon appeals his conviction for He argues that the trial court erred in providing the jury with a evidence did not support it. flight instruction because the We find no error. FACTS AND PROCEDURAL HISTORY ¶2 In December 2009, the victim and three of his friends, Codi, Kyle, and Tara, were in downtown Phoenix. While waiting for another friend, Dale, to meet them, they saw Hannon near them at a street corner. The victim recognized Hannon because they had previously met through a mutual friend. The victim greeted Hannon, but their conversation turned confrontational. ¶3 Dale approached the group and saw Hannon arguing with the victim. him and As the victim turned to walk away, Hannon lunged at slapped his landing on his hip. face. The victim fell to the ground, Hannon jumped on top of him and prepared to strike him again. ¶4 Dale yelled for Hannon to get off of the victim, and pulled him off. Hannon turned toward Codi and raised his fist as if to hit her but did not, and ran away. but lost sight of him. Dale chased Hannon Even though police officers were near, no one spoke to the police about the incident. ¶5 The following day, the victim experienced intense pain in his hip and went to the hospital. Doctors determined that his femur was broken and surgically repaired it. hospital, the victim contacted assault. 2 the police While at the about Hannon s ¶6 Hannon was charged assault, a class 4 felony. with one count of aggravated Before trial, the State proposed that the trial court give the following instruction on 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, together with all the other evidence in the case. You may also consider the defendant s reasons for running away. Running away after a crime has been committed does not, by itself prove guilt. ¶7 After confirming that a flight or concealment instruction is appropriate whenever a defendant s flight from a crime may show a consciousness of guilt, defense counsel told the court that he did not object to the proposed instruction. The court read the instruction to the jury, without objection. Hannon was found guilty imposed a suspended of aggravated sentence and placed assault. him on The court three years probation. ¶8 Hannon timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, and -4033(A) (Westlaw 2012).1 1 Absent material revisions to this decision, we cite the current version of applicable statutes. 3 DISCUSSION ¶9 Hannon argues that the evidence at trial did not support a flight instruction. We review de novo whether the jury was properly instructed. State v. Nelson, 229 Ariz. 180, 185, ¶ 21, 273 P.3d 632, 637 (App. 2012). Because Hannon did not object to this instruction at trial, however, he has waived any error, Ariz. R. Crim. P. 21.3(c), and we review only for fundamental error, State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the trial. defendant Id. could not possibly have received a fair To prevail under fundamental error review, an appellant must prove that fundamental error exists and that the error caused him prejudice. ¶10 Id. at ¶ 20. We find no fundamental error because we find no error. See State v. Silva, 222 Ariz. 457, 459, ¶ 11, 216 P.3d 1203, 1205 (App. 2009) (Before reviewing for fundamental error, we must first find that error occurred.) A party is entitled to a jury instruction if supported by any theory of the evidence. State v. Rodriguez, 192 Ariz. 58, 61, ¶ 16, 961 P.2d 1006, 1009 (1998). A flight instruction may be given if the evidence shows either open flight or concealment. State v. Hunter, 136 Ariz. 45, 48-49, 664 P.2d 195, 198-99 (1983). 4 Leaving the scene is considered flight if the consciousness of guilt. crime, rather than manner Id. walking of leaving suggests a Running from the scene of a away, may provide evidence guilty conscience prerequisite to a flight instruction. of a State v. Lujan, 124 Ariz. 365, 371, 604 P.2d 629, 635 (1979). ¶11 The evidence presented at trial supported the flight instruction. Hannon and other witnesses testified that he ran away from the scene after he hit the victim. Hannon testified that after the blow, he immediately started running. witnesses victim. also testified that Hannon ran after Other hitting the A reasonable jury could conclude that such manner of flight manifested a consciousness of guilt. ¶12 Moreover, even if Hannon could show that the trial court erred in giving the instruction, he cannot show that the instruction prejudiced him. The instruction was phrased permissively; the jury was instructed that they may consider evidence of Hannon s running away and that running away from a crime did not necessarily prove guilt. The jury was further instructed to consider the evidence with all other evidence in the case. As instructed, Hannon was not prejudiced. record, we find no error, let alone fundamental error. 5 On this CONCLUSION ¶13 For these reasons, we affirm. ___/s/____________________________ RANDALL M. HOWE, Judge CONCURRING: ___/s/_______________________________ MAURICE PORTLEY, Presiding Judge ___/s/_______________________________ PATRICIA A. OROZCO, Judge 6

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