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State v. Allain

Court of Appeals of Arizona, First Division

December 3, 2013

STATE OF ARIZONA, Appellee,
v.
LAWRENCE ALLAIN, JR., Appellant.

         Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CR2012-122883-001 The Honorable Patricia A. Starr, Judge Pro Tempore

Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix By Spencer D. Heffel Counsel for Appellant

Presiding Judge Andrew W. Gould delivered the decision of the Court, in which Judge Donn Kessler and Judge Michael J. Brown joined.

MEMORANDUM DECISION

GOULD, Judge

¶1 Lawrence Allain, Jr. appeals from his convictions of possession of dangerous drugs, possession of marijuana, and possession of drug paraphernalia. On appeal, Allain contends that the trial court's flight/concealment instruction to the jury was improper and amounted to prejudicial error. Allain requests reversal. For the following reasons, we affirm.

Facts and Procedural Background

¶2 On May 2, 2012, Phoenix Police Officer D. Baynes arrested Allain for an outstanding arrest warrant. During a search incident to arrest, Officer Baynes found a marijuana pipe containing marijuana residue. As he continued his search, Officer Baynes felt a large bulge on the inside of Allain's right ankle. Allain then "snapped his feet or legs together, " and Officer Baynes removed two bags of methamphetamine from Allain's right sock.

¶3 Allain was charged with possession of dangerous drugs, possession of marijuana, and possession of drug paraphernalia. At trial, the court gave a flight/concealment instruction to the jury, which read as follows:

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.

¶4 Allain did not object to this instruction at trial. The court also instructed the jury that as they determined the facts they "may find that some of [the] instructions no longer apply, " and, if so, they should only "consider the instructions that do apply, together with the facts as [they] have determined them."

¶5 The jury found Allain guilty on all counts. Allain filed a timely notice of appeal. This court has jurisdiction under Article 6, § 9 of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") §§ ...


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