State v. Cutright

• Decision Date: 17 June 1999
• Docket Number: No. 1 CA-CR 98-0463.,1 CA-CR 98-0463.
• Parties: STATE of Arizona, Appellee, v. Olvin CUTRIGHT, Jr., Appellant.
• Court: Arizona Court of Appeals

2 P.3d 657

196 Ariz. 567

STATE of Arizona, Appellee, v. Olvin CUTRIGHT, Jr., Appellant.

No. -0463.

Court of Appeals of Arizona, Division 1, Department B.

June 17, 1999.

Review Denied April 18, 2000.

Janet A. Napolitano, The Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and J. Randall Jue, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Terry J. Adams, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

SULT, Judge.

¶ 1 Olvin Cutright, Jr. ("defendant") appeals from his convictions and sentences imposed on one count of discharging a firearm at a residential structure and two counts of aggravated assault. In this opinion, we determine that the flight instruction was properly given. We also decide that the crime of disorderly conduct when committed by reckless display of a firearm is not a lesser-included offense of aggravated assault committed by using a deadly weapon to place another in reasonable apprehension of imminent physical injury.

BACKGROUND

¶ 2 On September 25, 1997, defendant and L.C., who were recently separated, telephonically argued about the child custody and divorce proceedings in which they were involved. At the time, L.C. was living at the home of her parents, Mr. and Mrs G., and later that day, defendant went to that residence and spoke with the parents about his relationship with L.C. A heated argument ultimately ensued between L.C., her parents, and defendant.

¶ 3 Eventually, defendant left the house through the kitchen door with L.C. and her father pursuing him to the doorway, shouting that defendant should "come back and finish up the conversation." However, L.C. then saw defendant grab his shirt, and she slammed the door shut, yelling that she thought defendant had a gun. L.C. immediately heard two gunshots, Mr. G. heard three, and Mrs. G. heard loud noises. L.C. also testified that one shot went through the kitchen door and nicked the kitchen rug, and two shots hit the outside wall of the house, just east of the kitchen door.

¶ 4 L.C. called 911 and Buckeye police officers responded to the scene. Prior to the arrival of the officers, defendant had departed in his vehicle, a silver "low rider" style Buick with chrome wheels, and there were no witnesses to the manner in which he left the scene. One of the police officers who responded to the scene, Kevin Heaslip, decided not to stop but to continue on, searching for defendant. As Officer Heaslip headed northbound on Miller Road, he activated his emergency lights, but not his siren, to pass other traffic. While traveling on Miller road, he spotted a vehicle turning onto Southern Avenue that appeared to match the description of defendant's vehicle.

¶ 5 Officer Heaslip turned onto Southern Avenue and commenced following the vehicle, which in fact was defendant's. With the officer following, defendant drove very slowly, sometimes only two to three miles per hour, and defendant also swerved off the road twice. Defendant continued westbound for approximately two-tenths of a mile and then circled a trailer and stopped. Officer Heaslip then took defendant into custody.

¶ 6 Police later recovered defendant's pistol and holster near the area where he had swerved off Southern Avenue, and defendant admitted at trial that he had thrown the pistol away because he panicked. In addition, four expended casings from defendant's gun were recovered near the G. residence.

¶ 7 Defendant went to trial before a jury on Count I, knowingly discharging a firearm at an occupied residence, a class 2 dangerous felony, and Counts II and III, aggravated assault on Mr. and Mrs. G., respectively, both class 3 dangerous felonies. Defendant was found guilty as charged and was sentenced to the minimum term of seven years' imprisonment on Count I, and minimum terms of five years' imprisonment each on Counts II and III, with all terms to run concurrently. Defendant filed a timely notice of appeal.

ISSUES

¶ 8 Defendant presents two issues:

1. Did the trial court err in giving the "Flight or Concealment" instruction?

2. Did the trial court err in refusing to give a lesser-included disorderly conduct instruction on Counts II and III?

ANALYSIS

Flight or Concealment Instruction

¶ 9 RAJI Standard Criminal No. 9, entitled "Flight or Concealment," reads as follows:

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.

This instruction covers three different but related concepts: flight, concealment of self, and concealment of evidence. Each of these acts when committed by a criminal suspect has been adjudged to manifest a suspect's consciousness of guilt, which in turn "gives rise to an inference of actual guilt." State v. Hunter, 136 Ariz. 45, 48, 664 P.2d 195, 198 (1983) (flight and concealment of self); see also State v. Bible, 175 Ariz. 549, 592, 858 P.2d 1152, 1195 (1993)

(flight); State v. Salazar, 173 Ariz. 399, 409, 844 P.2d 566, 576 (1992) (flight and concealment of evidence).

¶ 10 At trial, the state requested the instruction be given and defendant's counsel objected, arguing that the evidence was insufficient to support any inference of flight. The trial court initially agreed that it would not give the flight portion but would instruct on "hiding" and "concealing evidence." Notwithstanding this ruling, the trial court gave the jury the full text of RAJI Standard Criminal No. 9.

¶ 11 On appeal, defendant does not argue that there was no support for the concealment of evidence portion of the instruction, implicitly conceding that the circumstances surrounding the finding of the gun and holster justify instructing on that principle. Defendant instead focuses on the flight, or "running away," aspect of the instruction, arguing that because there was no evidence of how he left the scene, that part of the instruction was not warranted. The state argues that Officer Heaslip's account of his following of defendant on Southern Avenue provides sufficient support for the jury to draw an inference of flight.¹

¶ 12 Instructing on flight is proper when the defendant's conduct manifests a consciousness of guilt. See State v. Lujan, 124 Ariz. 365, 371, 604 P.2d 629, 635 (1979)

(running from the scene of a crime); State v. Salazar, 112 Ariz. 355, 357, 541 P.2d 1157, 1159 (1975) (attempting to elude police in a high speed chase); State v. Guerrero, 58 Ariz. 421, 425, 120 P.2d 798, 800 (1942) (escape following arrest). Whether the trial court should instruct on flight is determined by the facts in the particular case. What the court must determine is 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. Cf. Salazar, 173 Ariz. at 409,

844 P.2d at 576. Time, distance, and speed are relevant but not conclusive. The key inquiry is whether the defendant engaged in some type of eluding behavior designed to camouflage his participation in a crime, thus manifesting a consciousness of guilt.

¶ 13 In this case, we agree with defendant that merely leaving the G. residence would not justify the flight instruction. See State v. Wilson, 185 Ariz. 254, 257, 914 P.2d 1346, 1349 (App.1995)

. This determination does not help defendant, however, because the dispositive question is whether defendant's manner of driving while Officer Heaslip followed him was sufficient to support an inference of a consciousness of guilt. We conclude that it does.

¶ 14 If defendant's driving were viewed in isolation, apart from the disposal of the gun and holster, defendant's position would be much stronger. Behavior that consists of driving slowly for a short distance before pulling over for a police vehicle displaying emergency lights, but no siren, may be too equivocal to support an inference of a consciousness of guilt. Here, however, defendant used this driving to "buy time" to also attempt to conceal evidence. Because the officer was behind defendant when defendant swerved off the road at a point where the gun and holster were later found, it is reasonable to infer that defendant became aware of the officer's presence but continued to drive so that he could dispose of this incriminating evidence. Driving for this purpose, no matter how brief the time or distance, qualifies as an attempt to elude, and it is this type of eluding behavior that is at the heart of the notion that flight manifests guilt. We therefore find no error by the trial court in giving the flight portion of the instruction.

Disorderly Conduct Instruction

¶ 15 Defendant offered the following jury instruction, derived from Arizona Revised Statutes Annotated ("A.R.S.") section 13-2904(A)(6) (Supp.1998), and assigns error to the trial court's refusal to give it:

A person commits disorderly conduct if:

1. With intent to disturb the peace or quiet of a neighborhood, family, or person, or with knowledge of doing so he

2. Recklessly handles, displays or discharges a deadly weapon.

Specifically, defendant argues that the trial court was compelled to give this instruction because the evidence supported it and State v. Angle, 149 Ariz. 478, 720 P.2d 79 (1986), required it.

¶ 16 In Angle, our supreme court adopted the dissenting position of Judge Kleinschmidt in this court's decision in State v. Angle, 149 Ariz. 499, 720 P.2d 100 (App.1985). In doing so, the court approved the proposition that disorderly...