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State v. Kelso

Court of Appeals of Arizona, First Division, Department B

October 22, 2013

STATE OF ARIZONA, Appellee,
v.
LARRY GENE KELSO, Appellant.

         Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR 2011-008241-001 The Honorable Randall H. Warner, Judge.

Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals and Andrew Reilly, Assistant Attorney General Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender Phoenix By Terry J. Adams, Deputy Public Defender Attorneys for Appellant.

MEMORANDUM DECISION

PATRICIA K. NORRIS, Judge.

¶1 Larry Gene Kelso appeals his conviction and sentence for aggravated assault arguing the superior court should not have instructed the jury on flight or concealment of evidence because the trial evidence did not support giving the instruction. We disagree.

FACTS AND PROCEDURAL BACKGROUND[1]

¶2 On January 5, 2007, Kelso, who was then employed by the Mesa Police Department, was involved in a confrontation with his teenage stepson, B.C. The confrontation escalated, and Kelso deployed his department-issued taser striking B.C. in the leg.

¶3 Mesa Police Department required each officer to file a report with it each time a department-issued taser was deployed detailing the circumstances surrounding the deployment.[2] Instead of reporting to the department he had deployed the taser on B.C., Kelso reported he had deployed his taser on a stray dog. Kelso also filed a police report concerning the stray dog with the Gilbert Police Department.

¶4 In August 2011, after Kelso and B.C.'s mother had separated, B.C. informed his mother about the incident with Kelso. She subsequently filed a report with the Gilbert Police Department. At trial, the State played a confrontation call between Kelso and B.C. during which Kelso acknowledged tasing B.C. on January 5, 2007. The jury convicted Kelso of aggravated assault, a class 6 undesignated felony and domestic violence offense.

DISCUSSION

¶5 Over Kelso's objection, the superior court instructed the jury on flight or concealment:

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 running away, hiding or concealing evidence together with all the evidence in the case. Running away, hiding or concealing ...

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