State v. Jones ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
FRED HENRY JONES, Appellant.
No. 1 CA-CR 13-0680
FILED 09-30-2014
Appeal from the Superior Court in Maricopa County
No. CR2012-143654-001
The Honorable Jo Lynn Gentry, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
STATE v. JONES
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Maurice Portley joined.
H O W E, Judge:
¶1 Fred Henry Jones appeals his conviction for theft of means of
transportation. He argues that the trial court erred when it included
language in the flight or concealment jury instruction about inferences to
draw from his running away or hiding because no evidence shows that he
ran away or hid. We find no error and therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In March 2012, Peoria Police Department Officers James
Brown and Norman Bacon were monitoring traffic at Grand and 43rd
Avenue. At 12:30 p.m., a Dodge Dakota pulling a trailer that carried a
partially stripped Dodge Dakota drove by the officers. The officers stopped
the Dakota because they could not see the trailer’s entire license number.
Jones was driving the truck and immediately pulled over.
¶3 Officer Brown asked for Jones’s license, registration, and
proof of insurance. Jones responded that the officer was “going to write him
a lot of tickets.” When asked why, Jones stated that he did not have
registration or insurance for both the truck he was driving and the trailer it
was pulling. While Officer Brown spoke with Jones, Officer Bacon ran the
license numbers for the truck and the trailer. The trailer license came back
as registered to Jones, but the truck’s license came back as registered to a
1991 station wagon. Officer Brown ran the VIN number for the truck. The
result of the VIN search indicated that the truck was reported stolen on
November 18, 2011. Officer Brown placed Jones under arrest.
¶4 An hour later, Officers Brown and Bacon interviewed Jones.
When asked about the misplaced license plate for the truck, Jones indicated
that he had taken the plate off a vehicle he had on his business lot. Jones
also stated that he was using the plate for this trip to haul the truck to a
scrap buying business.
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STATE v. JONES
Decision of the Court
¶5 Jones was charged with one count of theft of means of
transportation and tried by jury. Before the end of trial, the State asked the
trial court to 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, 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.
Defense counsel objected, arguing that the instruction was inappropriate
for Jones’s case. Defense counsel stated he had only seen the instruction
used in cases where the client “ran away from the police.” The trial court
overruled the objection. It read the instruction to the jury without further
objection. The jury found Jones guilty of theft of means of transportation.
The court imposed a suspended sentence and placed him on three years’
probation. Jones timely appealed.
DISCUSSION
¶6 Jones concedes that the State presented evidence justifying an
instruction on the inferences that could be drawn from his concealing
evidence, but contends that the instruction improperly included language
about the inferences to draw from his running away or hiding because no
evidence shows that he ran away or hid. He argues that the trial court
should have omitted that language from the instruction. We review the trial
court’s decision to give an instruction for an abuse of discretion. State v.
Tarr, 235 Ariz. 288, 292 ¶ 9, 331 P.3d 423, 427 (App. 2014).
¶7 The trial court did not abuse its discretion by including the
complete flight or concealment instruction. A party is entitled to a jury
instruction on any theory reasonably supported by the evidence. Taylor-
Bertling v. Foley, 233 Ariz. 394, 397 ¶ 8, 313 P.3d 537, 540 (App. 2013). The
decision whether such an instruction should be given is determined by the
facts in a particular case. State v. Speers, 209 Ariz. 125, 132 ¶ 27, 98 P.3d 560,
567 (App. 2004). The complete flight or concealment instruction is proper
when the State presents evidence of flight, concealment of self, or
concealment of evidence. State v. Cutright, 196 Ariz. 567, 569–70 ¶¶ 9, 11 &
n.1, 2 P.3d 657, 659–60 & n.1 (App. 1999) disapproved of by State v. Miranda,
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STATE v. JONES
Decision of the Court
200 Ariz. 67, 22 P.3d 506 (2001) (citing State v. Hunter, 136 Ariz. 45, 49, 664
P.2d 195, 199 (1983)).
¶8 Here, the evidence supported the flight or concealment
instruction. Jones testified that he put another vehicle’s license plate on the
truck to “road test” it and to avoid being stopped by the police. Further,
when Officer Brown interviewed him the day he was arrested, Jones stated
that he put the plate on so that he could use the truck to transport the
scrapped truck to a scrap buying business. Finally, Jones admitted when he
was stopped that he did not have registration or insurance for the truck,
and at trial he admitted that the truck was not registered to him.
Consequently, a reasonable jury could conclude that Jones’s action
manifested concealing of evidence.
¶9 Jones now maintains that the part of the instruction
pertaining to running away or hiding should have been excised from the
standard instruction because no evidence showed that he ran or hid. But he
never asked the trial court to delete the inapplicable language, and the court
had “no duty to parse the proposed instruction for the accurate portions.”
State v. Parker, 231 Ariz. 391, 405 ¶ 54, 296 P.3d 54, 68 (2013). Moreover, the
inapplicable part of the instruction did not prejudice Jones. The instruction
was permissive, merely allowing the jury to consider evidence of running
away or hiding in determining guilt. Because the State presented no
evidence that Jones ran away or hid and did not argue that to the jury, the
inapplicable part of the instruction was irrelevant. The jury was advised in
its instructions that based on its determination of the facts, it “may find that
some instructions no longer apply.” The trial court did not abuse its
discretion in giving the complete flight or concealment instruction.
CONCLUSION
¶10 For the foregoing reasons, we affirm.
:gsh
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