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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

DAVID LEE SATOVICH, Appellant.

No. 1 CA-CR 14-0295

Appeal from the Superior Court in Maricopa County

No. CR2013-115104-001

The Honorable Harriett E. Chavez, Retired Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Andrew S. Reilly

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Margaret Green

Counsel for Appellant
STATE v. SATOVICH

Decision of the Court

2

MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Jon W. Thompson joined.

P O R T L E Y, Judge:

¶1 David Lee Satovich appeals his convictions for burglary in the 

third degree and possession of burglary tools. He argues that the trial court 

erred by denying his Arizona Rule of Criminal Procedure (“Rule”) 20 

motion and giving the jury a flight instruction over his objection. For 

reasons set forth below, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 The owner of a carpet business, Gerald, heard his dogs 

barking on April 2, 2013, the way they usually did when someone was at 

the adjacent business, Bolt’s Metalizing. Gerald went outside and observed

two men inside the fenced yard at Bolt’s “crouched down” on the back side 

of a piece of equipment.

2 He called out twice asking what the men were 

doing. They reacted to his second yell, and one of them came over and 

explained that they were “taking this piece of equipment apart so it could 

be transported to their new location.” Because Gerald knew the business 

had been sold and moved, the explanation “sounded feasible” and Gerald 

returned his attention to his work. Later, hearing his dogs bark again, 

Gerald went outside and saw the two men “grasping wire out of a 

compartment and just ripping it out of the machine.” It struck him as odd 

because the two men were “working even faster at” pulling wires, but there 

 

1 We view the evidence in the light most favorable to sustaining the 

convictions and resolve all reasonable inferences against the defendant. 

State v. Karr, 221 Ariz. 319, 320, ¶ 2, 212 P.3d 11, 12 (App. 2008).

2 The equipment was described variously as a “baghouse” or a “dust 

collector.” It weighed “thousands of pounds” and required several men 

and heavy machinery to move. Bolt’s had used the machine to “suck up” 

the smoke and small particles generated in the process of applying metal or 

ceramic to airplane parts in order to comply with OSHA regulations. 
STATE v. SATOVICH

Decision of the Court

3

was no crane, forklift or any transportation other than a motorized scooter.

3 

He told them to “stop what [they] were doing” without success.

¶3 After Gerald yelled that he was “calling the police,” the two 

men “scattered.” The man who had spoken to Gerald took something out 

of the machine that appeared to be “quite heavy,” put it on the scooter, 

pushed the scooter onto 36th Street, and drove off. Satovich, however,

headed east, went “over . . . [a] six to eight foot fence” to reach 37th Street, 

and then proceeded to walk north on 37th Street. Satovich had a duffel bag 

with wire hanging out of it. Gerald pointed Satovich out to a Phoenix police 

officer when he arrived.

¶4 The officer stopped Satovich as he was walking north on 37th

Street. The officer noticed Satovich was “carrying a grey tool bag type 

thing” and could “see some wire sticking out of it.” The bag also contained 

tools, including knives, a screwdriver, a multi tool, and large pliers and 

large shears used to cut wire or metal sheeting. Satovich subsequently told 

the officer that “a guy he only knew as John” had asked him if he wanted 

to make ten dollars an hour by removing some equipment from the 

business. Satovich agreed, and they began to remove some of the items 

until “an unknown guy then yelled at them.” According to Satovich, John 

walked over and talked to “that guy” and then returned and “said he had 

to leave.” John left on the scooter4 after he and Satovich agreed “to meet up 

someplace in about an hour in the area.” Prior to leaving, John informed 

Satovich to “go ahead and take some of the wire for his payment if he 

wanted to.” Satovich also stated that he and John had just “pulled some 

wire” while they were on the property. Eventually, Satovich told the officer 

that John was “John Chambers . . . a transient in the area that scraps metal 

all the time,” that he knew John “from the street,” and that “John commonly 

stayed in the back of an abandoned business at the corner of 37th Street and 

Washington.”

¶5 During his investigation at the property, the officer noticed 

that several of the electrical junction boxes had their covers off and wires 

hanging out. He saw three locations on the building where copper tubing 

had been cut off. The tubing was jagged and bent, not “professionally cut” 

but broken or cut with “some type of cutter.” The officer walked to the area 

 

3 Gerald described the scooter as the type “that you see the handicapped 

and the elderly ride.” 

4 Although the police never found John, the scooter was found abandoned 

in a driveway on North 36th Street. The scooter had some wire “lying” on 

it. 
STATE v. SATOVICH

Decision of the Court

4

where Gerald spotted Satovich and John “pulling the wire . . . from . . . a 

junction box near an electrical motor.” The officer saw that “the wires 

coming out of the motor were gone.” He traced the conduit “down into the 

ground and towards the direction of the building” where he noticed 

“another panel with a conduit coming out of the ground that was now 

empty, and no wires were inside of it.” The wire in Satovich’s bag was 

“solid core copper wire with a black coating,” but there was also “a roll with 

a green coating on it.” The wiring in the bag matched the wire at the scene.

¶6 The State charged Satovich with burglary in the third degree 

and possession of burglary tools. A jury found him guilty as charged. The 

jury also found three aggravating factors, and the trial court, after a hearing, 

found that Satovich had two “allegeable non-historical prior felony 

convictions.” Satovich was subsequently sentenced to a mitigated term of 

four years in prison for the burglary and a concurrent one year term for 

possession of burglary tools. He was given seventeen days of presentence 

incarceration credit. We have jurisdiction over this appeal pursuant to the 

Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes 

(“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and -4033.

5

DISCUSSION

I. Rule 20 

¶7 Satovich first contends that the State presented insufficient 

evidence to convict him and the court erred by denying his Rule 20 motion. 

He specifically argues that the evidence was insufficient to prove that he 

committed third degree burglary because the State failed to prove that the 

property was “a fenced commercial yard.”

¶8 A conviction in a criminal case must be supported by 

“substantial evidence.” State v. Mathers, 165 Ariz. 64, 66-67, 796 P.2d 866, 

868-69 (1990). Substantial evidence is “proof that ‘reasonable persons could 

accept as adequate and sufficient to support a conclusion of defendant’s 

guilt beyond a reasonable doubt.’” State v. Fulminante, 193 Ariz. 485, 493, 

975 P.2d 75, 83 (1999) (quoting Mathers, 165 Ariz. at 67, 796 P.2d at 869).

¶9 “[The] question of sufficiency of the evidence is one of law, 

subject to de novo review on appeal. State v. West, 226 Ariz. 559, 562, ¶ 15, 

250 P.3d 1188, 1191 (2011) (citing State v. Bible, 175 Ariz. 549, 595, 858 P.2d 

1152, 1198 (1993)). “[T]he relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of 

 

5 We cite to the current version of the statute unless otherwise noted.
STATE v. SATOVICH

Decision of the Court

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fact could have found the essential elements of the crime beyond a 

reasonable doubt.” West, 226 Ariz. at 562, ¶ 16, 250 P.3d at 1191. Both direct 

and circumstantial evidence must “be considered in determining whether 

substantial evidence supports a conviction.” Id. If reasonable minds may 

differ on the inferences to be drawn from the facts, the evidence is 

nonetheless substantial and the conviction will be upheld. State v. Williams, 

233 Ariz. 271, 273, ¶ 6, 311 P.3d 1084, 1086 (App. 2013) (citing State v. Lee, 

189 Ariz. 590, 603, 944 P.2d 1024, 1037 (1997)). “Reversible error based on 

insufficiency of the evidence occurs only where there is a complete absence 

of probative facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 

186, 200, 928 P.2d 610, 614 (1996).

¶10 Satovich was charged with third degree burglary for having 

“entered or remained unlawfully in the fenced commercial yard of [T.B.]” 

with the intent to commit a theft or a felony therein. A “fenced commercial 

yard” is defined as “a unit of real property that is surrounded completely 

by fences, walls, buildings or similar barriers, or any combination of fences, 

walls, buildings or similar barriers, and that is zoned for business 

operations or where livestock, produce or other commercial items are 

located.” A.R.S. § 13-1501(4).

¶11 Relying on State v. Hinden, 224 Ariz. 508, 233 P.3d 621 (App. 

2010), Satovich argues that the property he had entered was no longer a 

commercial yard because the metalizing business had been sold and the 

purchaser had moved the business to a different site and, as a result, there 

was no business actively in operation at the time he entered the property. 

In Hinden, we reversed the third degree burglary conviction because the 

evidence established that “no person had been seen working on the 

property for at least four years, and the business had not been in operation 

for eighteen years” when that defendant entered onto the property. 

224 Ariz. at 511, ¶ 13, 233 P.3d at 624. Under those circumstances, we found 

that the defendant’s entrance onto property that was “unoccupied and 

inactive for a significant period of time” could adequately be addressed 

“under statutes sanctioning theft or trespass” rather than the burglary 

statutes, whose purpose was to punish the violation of the privacy and 

possessory rights of individuals. Id. 

¶12 Here, the facts are different than those in Hinden. Although 

the metalizing business had been sold and relocated, not all of the 

business’s equipment had been removed. The business’s former owner, 

who still owned the land and buildings, testified that the purchaser leased

buildings from him, continued to use the property to store business items 

and supplies and remove them as needed. The purchaser, as a lessee, had 
STATE v. SATOVICH

Decision of the Court

6

keys to the buildings and used them as needed to pick up products or tools. 

The owner also testified that the purchaser had yet to remove the dust 

collector that was attached to the building, but had contracted to have it 

removed by a professional moving company that specialized in moving 

“industrial equipment.”6 Additionally, the owner testified that he visited 

the property “every couple of weeks” in order to “flush the toilets, see if it 

was locked up,” and had last visited the property “a couple of weeks” 

before the burglary. He also testified that any equipment left on the 

property belonged to the purchaser and “was [the purchaser’s] to sell.”

¶13 Here, and unlike the facts in Hinden, the fenced property 

Satovich entered onto was not “unoccupied and inactive” for a significant 

period of time. The property was still owned and its owner checked it 

periodically. Moreover, the business’s purchaser had a possessory interest 

in the property as a result of his lease of the enclosed site, and had an 

ownership interest in any equipment still on the property. 

¶14 As a result, even though the fenced property was not then an 

active business site, it was still being used for commercial activity at the 

time of the burglary. Consequently, the court did not err in denying 

Satovich’s Rule 20 motion as it related to the burglary count. See West, 226 

Ariz. at 562, ¶ 16, 250 P.3d at 1191.

II. Flight Jury Instruction

¶15 Before closing argument, the State requested the trial court 

give the “Standard Criminal 9” flight or concealment instruction. The 

defense objected because there was also no evidence Satovich attempted to 

run away or hide either himself or the bag from the police. The defense, 

however, suggested that the instruction be reworded with “something 

similar to the Defendant leaving the scene or something like that where it 

doesn’t have this big negative connotation that he was actively running and 

fleeing from the police.”

¶16 The court gave the standard RAJI instruction to the jury:

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, 

 

6 The purchaser of the business sold the dust collector to a company from 

Ohio and the dust collector was removed from the enclosed site some two 

weeks after the burglary.
STATE v. SATOVICH

Decision of the Court

7

hiding or concealing evidence together with all 

the other evidence. 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.

Satovich argues on appeal that the court abused its discretion by giving the 

instruction over his objection when the facts show that he did not exhibit 

any “eluding behavior.”

¶17 We review the court’s decision to give an instruction for an 

abuse of discretion. State v. Hurley, 197 Ariz. 400, 402, ¶¶ 9-10, 4 P.3d 455, 

457 (App. 2000). We, however, review de novo whether the instructions 

given correctly stated the law. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 

1325, 1327 (1997); State v. Solis, 236 Ariz. 285, ___, ¶ 6, 339 P.3d 668, 669 

(App. 2014). A party is entitled to a jury instruction on any theory of the 

case reasonably supported by the evidence. State v. Bolton, 182 Ariz. 290, 

309, 896 P.2d 830, 849 (1995). “[M]erely leaving the scene of a crime is not 

evidence of flight.” State v. Lujan, 124 Ariz. 365, 371, 604 P.2d 629, 635 

(1979). “A flight instruction should only be given if the State presents 

evidence of flight after a crime from which jurors can infer a defendant’s 

consciousness of guilt.” Solis, 236 Ariz. at ___, ¶ 7, 339 P.3d at 669. In fact, 

the instruction should only be given if the evidence “supports a reasonable 

inference that the flight or attempted flight was open” or “the evidence 

must support the inference that the accused utilized the element of 

concealment or attempted concealment.” Id. ((internal quotation marks 

omitted) quoting State v. Smith, 113 Ariz. 298, 300, 552 P.2d 1192, 1194 

(1976)). Thus, the key is to determine whether a defendant engaged in some 

type of eluding behavior designed to camouflage his participation in a 

crime, thus manifesting a consciousness of guilt. See State v. Cutright, 196 

Ariz. 567, 570, ¶ 12, 2 P.3d 657, 660 (App. 1999), disapproved of on other 

grounds by State v. Miranda, 200 Ariz. 67, 22 P.3d 506 (2001).

¶18 Although Satovich was found walking on the street, the trial 

court considered the instruction appropriate based on the totality of the 

evidence, including the fact that Satovich was initially seen crouching 

behind the dust collector and later “running and jump[ing] a fence.” The 

court acknowledged that it was a “matter of perspective” because there was 

“a question of whether [Satovich] didn’t jump a fence and run away or was 

just actually walking slowly after he got out,” but concluded the instruction 

was appropriate because “an argument could be made either way.” We 

agree.
STATE v. SATOVICH

Decision of the Court

8

¶19 Although Satovich and John “scattered” in opposite 

directions after Gerald yelled that he was going to call the police, Satovich 

had a bag with coiled wire inside it and had to climb over a six to eight foot 

fence to get to 37th Street. While Satovich maintains that there was “no 

testimony” that he actually heard Gerald say that he was calling the police, 

it was a fact the jury had to resolve. And it was reasonable to infer from 

Satovich’s behavior that he heard the statement and that it prompted his 

precipitous departure.

¶20 Satovich also contends that the fact that he walked down 37th

Street without hiding the wire that was protruding from his bag shows that 

he was not “exhibiting any eluding behavior” or attempting to conceal the 

wire “sticking out of his bag.” Although he did not run once he reached 

the street, speed, while relevant, is not “conclusive” regarding whether or 

not to give the instruction. Id. The crucial inquiry is whether Satovich 

engaged in some kind of “eluding behavior” that was “designed to 

camouflage his participation in a crime” which manifested a 

“consciousness of guilt.” Id. “If the evidence shows a defendant’s manner 

of leaving the scene of a crime reveals a consciousness of guilt, even in the 

absence of pursuit, an instruction on flight is permissible.” State v. Salazar, 

173 Ariz. 399, 409, 844 P.2d 566, 576 (1992). Here, because Satovich initially 

scattered when Gerald said he was calling the police, and jumped over the 

fence with stolen wire, qualifies as a type of “eluding behavior” that may 

manifest a consciousness of guilt. As a result, the court did not err by giving 

the RAJI instruction on flight to allow the jury to determine all of the facts 

in reaching its verdicts. 

CONCLUSION

¶21 Based on the foregoing, we affirm Satovich’s convictions and 

sentences.