Opinion
No. 1 CA-CR 20-0062
04-01-2021
STATE OF ARIZONA, Appellee, v. RAFAT HADDAD, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Carlos D. Carrion Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2014-005337-001
The Honorable Dean M. Fink, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Carlos D. Carrion
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined. WILLIAMS, Judge:
¶1 Rafat Haddad appeals his convictions for three counts of aggravated assault. He argues the superior court erred by admitting other-act evidence and by instructing the jury that evidence of Haddad running away or hiding after an altercation could be considered to determine guilt. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Viewing the evidence in a light most favorable to upholding the verdicts, State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015), one May 2014 morning, Haddad "barged" into his daughter's apartment and began punching her boyfriend, N.C. As a result of the beating, N.C. was hospitalized for two days. He suffered extensive facial injuries, including a broken nose and orbital floor blowout. Before he was transported to the hospital, N.C. called the police and reported the incident, Haddad fled the scene before police arrived, and subsequent attempts to locate him were unsuccessful.
¶3 The State charged Haddad with three counts of aggravated assault, two Class 4 felonies and one Class 6 felony. A warrant was issued for Haddad's arrest, and police apprehended him in 2019, five years after the incident.
¶4 At trial, Haddad testified that he was defending himself at the apartment when his daughter and N.C. attacked him. The jury found Haddad guilty as charged. The superior court suspended sentence and imposed concurrent terms of probation. Haddad timely appealed. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. Other-Act Evidence
¶5 Over Haddad's objection, N.C. testified during the State's rebuttal case that Haddad "[laid] hands" on him three days before the assaults in this case while the two were in a shopping mall parking lot with members of Haddad's family. N.C. immediately reported the incident to police.
The parties apparently informally agreed before trial not to introduce evidence of the prior incident. --------
¶6 Haddad argues the superior court erred under Arizona Rule of Evidence 404(b) by admitting evidence of the parking-lot incident. We review for an abuse of discretion. State v. Beasley, 205 Ariz. 334, 337, ¶ 14 (App. 2003).
¶7 Rule 404(b) prohibits evidence of other acts "to prove the character of a person in order to show action in conformity therewith" but allows such evidence "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ariz. R. Evid. 404(b)(1), (2).
¶8 Haddad has shown no abuse of discretion because evidence of the parking-lot incident was admissible under Rule 404(b) for at least two non-propensity purposes. First, evidence of prior threats or violence against the same victim is relevant to prove motive or intent when a defendant is charged with a violent crime. See State v. Gulbrandson, 184 Ariz. 46, 61 (1995) (determining that evidence of a previous assault on the victim was admissible to show motive and intent). Second, Haddad testified that he did not know, or "have an issue with," N.C. before the apartment incident, explaining, falsely, that he had arrived in Phoenix the previous day. Thus, N.C.'s rebuttal testimony was also properly admissible to impeach Haddad's testimony. See State v. Jeffers, 135 Ariz. 404, 417 (1983) ("The list of 'other purposes' in [R]ule 404(b) . . . is not exclusive; if evidence is relevant for any purpose other than that of showing the defendant's criminal propensities, it is admissible even though it refers to his prior bad acts."). II. Flight Instruction
¶9 The superior court instructed the jury 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 or hiding together with all the other evidence in the case. You may also consider the defendant's reasons for running away or hiding. Running away or hiding after a crime has been committed does not by itself prove guilt.
¶10 Haddad argues the court fundamentally erred by giving the flight instruction. According to Haddad, he left the scene not because he believed police were coming, but because his daughter was upset and other family members who were present advised him to leave.
¶11 Because Haddad failed to object at trial, he bears the burden on appeal of establishing fundamental error, which requires him to prove the error went to the foundation of his case or took away an essential right, resulting in prejudice, or the error "was so egregious that he could not possibly have received a fair trial." State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018). He fails to do so.
¶12 The State is entitled to a flight or concealment instruction if it is supported by the evidence. State v. Grijalva, 137 Ariz. 10, 15 (App. 1983), superseded by statute on other grounds as recognized in State v. Cons, 208 Ariz. 409, 413, ¶ 9 (App. 2004). Specifically, such an instruction is appropriate "[i]f the manner of leaving the scene suggests consciousness of guilt[.]" State v. Hunter, 136 Ariz. 45, 49 (1983).
¶13 Here, the evidence supported the flight instruction. See State v. Parker, 231 Ariz. 391, 404, ¶ 48 (2013) (quoting State v. Thornton, 187 Ariz. 325, 334 (1996)) (noting that "[l]eaving the state justifies a flight instruction as long as it invites some suspicion of guilt"). Haddad testified that he left the scene and never considered waiting for the police, despite his admission that he punched N.C. in the face to defend himself. Haddad's explanation for leaving the scene, which the jury was not required to believe, did not preclude the superior court from giving the flight instruction. At most, his explanation created a question of fact for the jury to resolve. See id. at ¶ 50. No error, fundamental or otherwise, occurred. See Escalante, 245 Ariz. at 142, ¶ 21 (noting the first step in fundamental error review is determining whether error occurred).
CONCLUSION
¶14 Haddad's convictions and the resulting disposition are affirmed.