STATE v. GOLDMEER

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JOSEPH VINCENT GOLDMEER, ) ) Appellant. ) ) _____________________________) DIVISION ONE FILED: 3/26/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0256 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2011-132690-001 DT The Honorable Joseph C. Kreamer, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Division Chief Counsel, Criminal Appeals/Capital Litigation Division And Joseph T. Maziarz, Section Chief Counsel Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 Defendant convictions assault. and Joseph sentences Vincent for three Goldmeer counts For the reasons that follow, we affirm. appeals of his aggravated ¶2 Defendant was a cab driver. On the afternoon of June 26, 2011, defendant went to a Circle K convenience store near 15th Avenue and Indian School Road to get a soda and got into an argument with another customer, T.K. The men left the store after finishing their transactions at the counter and continued arguing heatedly in the parking lot. Defendant got into his cab, a van, and T.K. followed him to the driver s side door. Defendant started to drive away, but stopped when T.K. walked around the front of the van. and continued yelling forward, hitting T.K. ground. at T.K. slapped the hood of the van, defendant. Defendant then drove T.K. flew up into the air and fell to the The van paused. Defendant drove over T.K. s body, drove over a curb, and took off rapidly down Indian School Road. T.K. suffered serious injuries. Police arrested defendant two to three hours later in Gilbert after the cab company provided the police with the van s GPS location. ¶3 The state charged defendant with two counts of aggravated assault, class 3 dangerous felonies, and one count of aggravated convicted assault, a class 4 defendant as charged. dangerous The felony. trial A court jury sentenced defendant to concurrent five-year mitigated sentences for counts one and two and a concurrent four-year mitigated sentence for count three, incarceration. with credit for 208 Defendant timely appealed. 2 days of presentence ¶4 Defendant raises one issue on appeal: whether the trial court erred in giving the jury a flight instruction. trial court gave the jury the following instruction, The which defendant objected to: 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. ¶5 We review the trial court s instructions for an abuse of discretion. decision to give jury State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). The trial court commits reversible error when it instructs the jury on an issue that is not supported by the evidence. 209 Ariz. 125, 132, ¶ 27, 98 P.3d 560, State v. Speers, 567 (App. 2004). Defendant argues that the flight instruction was not supported by the evidence because there was no evidence that he was fleeing as a result of an immediate pursuit, and there was no evidence of concealment. ¶6 In this case, the jurors could reasonably infer from the evidence that the way defendant left the scene evidenced a consciousness of guilt, and evidence of immediate pursuit was not required. See State v. Salazar, 173 Ariz. 399, 409, 844 3 P.2d 566, 576 (1992) ( If the evidence shows a defendant s manner of leaving the scene of a crime reveals a consciousness of guilt, even in the absence of pursuit, an instruction on flight is permissible. ) (citation omitted). Although defendant maintained that he had no idea he had hit T.K., a defendant s alternative explanation flight instruction. for his actions does not preclude a See State v. Hunter, 136 Ariz. 45, 49, 664 P.2d 195, 199 (1983). Moreover, evidence of concealment is not necessary to justify a flight instruction. State v. Thornton, 187 Ariz. 325, 334, 929 P.2d 676, 685 (1996) (citation omitted). We find no abuse of discretion. ¶7 For the foregoing reasons, we affirm defendant s convictions and sentences. /s/ _____________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ___________________________________ DONN KESSLER, Judge 4 5

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