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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MAURICE HARRIS, Appellant.

No. 1 CA-CR 17-0440 

Appeal from the Superior Court in Maricopa County

No. CR2016-131917-001

The Honorable David O. Cunanan, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, 

 Jameson Rammell, a Rule 38(d) student

Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix

By Edward F. McGee

Counsel for Appellant

FILED 7-17-2018
STATE v. HARRIS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Paul J. McMurdie and Judge David D. Weinzweig joined.

J O H N S E N, Judge:

¶1 Maurice Harris appeals his aggravated assault conviction. 

For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Harris's girlfriend stopped by Harris's work one day, and he

gave her the only key to the apartment they had recently begun to share, 

saying he would be off work at 10 p.m.1 After doing some shopping with 

her uncle, the girlfriend returned to the apartment around 9:30 p.m. to find 

Harris waiting outside. Harris had gotten off work early, and his girlfriend 

could see he had been drinking beer and was "irritated" at having to wait

for her to get into the apartment. Once they were inside, Harris suddenly 

punched her twice in her left eye. The girlfriend immediately turned aside 

to "grab something and [Harris] was already gone." Unsure whether Harris 

was still in the building and afraid for her safety, the girlfriend called 9-1-1.

¶3 Police arrived shortly thereafter and searched for Harris but 

could not find him in or near the apartment. Officers photographed the 

girlfriend's injury, which she described as a "big goose egg over [her] eye," 

and an officer took her to the hospital. Over the next few hours, the 

swelling around her eye increased. A scan showed that her left eye socket 

was fractured.

¶4 Harris did not show up for work the next day, but officers 

interviewed him at his workplace a week later. There, Harris admitted that 

he and his girlfriend had a "disagreement" one night a little over a week 

before. He said he had left the apartment after the disagreement and had 

not seen her since. Officers told him of the girlfriend's injury. In response,

 

1 On review, we view the evidence and all inferences from it in the 

light most favorable to sustaining the jury's verdict. State v. Nelson, 214 

Ariz. 196, 196, ¶ 2 (App. 2007).
STATE v. HARRIS

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3

Harris said he knew nothing about the assault, and, according to an officer, 

he expressed no concern about her condition. 

¶5 A grand jury indicted Harris on one charge of aggravated 

assault, a Class 4 felony domestic violence offense. Harris's girlfriend and 

several police officers and doctors testified during the resulting three-day 

trial. Over Harris's objection, the court gave the jury a flight instruction. 

See Rev. Ariz. Jury Instr. Stand. Crim. 9. The jury convicted Harris, and, 

after finding he had two historical prior felony convictions, the court

sentenced him to 10 years' imprisonment.

¶6 Harris timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes sections 12-120.21(A)(1) (2018), 13-4031 (2018) and 

-4033(A)(1) (2018).2

DISCUSSION

¶7 The only argument Harris raises on appeal is that the superior 

court erred by giving the flight instruction. We review the superior court's 

decision to give a jury instruction for abuse of discretion. State v. Burbey, 

243 Ariz. 145, 146, ¶ 5 (2017).

¶8 The flight instruction the court gave stated:

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.

¶9 A flight instruction is proper only when the "[d]efendant's 

manner of leaving the scene of the crime [reveals] a consciousness of guilt." 

State v. Lujan, 124 Ariz. 365, 371 (1979). More specifically, our supreme 

court has ruled the instruction may be given only when the evidence 

reasonably supports an inference that "the flight or attempted flight was 

open, such as the result of an immediate pursuit," or "that the accused 

utilized the element of concealment or attempted concealment." State v. 

 

2 Absent material revision after the date of an alleged offense, we cite 

the current version of a rule or statute.
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4

Smith, 113 Ariz. 298, 300 (1976); see State v. Solis, 236 Ariz. 285, 287, ¶ 7 (App. 

2014). "[M]erely leaving the scene or engaging in travel is not sufficient to 

support the giving of a flight instruction." State v. Speers, 209 Ariz. 125, 132-

33, ¶ 28 (App. 2004). Rather, the evidence must support an inference "that 

the defendant left the scene in a manner which obviously invites suspicion 

or announces guilt." Id. at 132 (quoting State v. Weible, 142 Ariz. 113, 116 

(1984)).

¶10 The court erred in giving the jury the flight instruction. The 

only relevant evidence of Harris's conduct after the altercation was the 

girlfriend's testimony, but she did not testify when or how Harris left, other 

than to say that he was gone when she turned back to him immediately 

after he punched her. There was no evidence that Harris ran from the scene. 

Cf. Lujan, 124 Ariz. at 371 ("Running from the scene of a crime, rather than 

walking away, may provide evidence of a guilty conscience prerequisite to 

a flight instruction."). Nor was there any other evidence that invited 

suspicion about his departure. Responding officers searched the apartment 

and determined he was no longer present. But a defendant's departure 

from the scene, even immediately after the act at issue, does not by itself 

sufficiently support an inference of open flight. See State v. Corona, 188 Ariz. 

85, 90 (App. 1997) (error to instruct on flight when the "only evidence 

regarding the defendant's exit was . . . testimony that . . . he got on his 

bicycle and left").

¶11 Nor is there sufficient evidence that Harris attempted to 

conceal himself. Although he did not report to work the next day, there is 

no evidence police were unable to reach Harris by phone or that they later 

unsuccessfully tried to find him at his apartment. A one-day departure 

from his normal routine, without more, does not give rise to an inference 

that Harris concealed himself in such a manner to invite suspicion or 

announce his guilt. See State v. Tison, 129 Ariz. 526, 540 (1981) (record 

"replete with evidence" of concealment when defendants changed vehicles 

twice and painted and "partially buried" one of the vehicles); State v. 

Swinburne, 116 Ariz. 403, 414 (1977) (defendant used false names, shaved 

beard and dyed hair); State v. Ferrari, 112 Ariz. 324, 333 (1975) (defendant 

left the state and, upon return, "registered at a motel under an assumed 

name and listing a false occupation"); State v. Earby, 136 Ariz. 246, 248 (App. 

1983) (defendant left the state); State v. Bailey, 107 Ariz. 451, 451-52 (1971) 

(evidence insufficient to warrant a flight instruction when defendant 

testified that he left the state because he worked as a truck driver travelling 

from California to Texas). Nor does the fact that Harris left his home, 

without more, warrant a flight instruction. Cf. State v. Parker, 231 Ariz. 391, 

403-04, ¶¶ 43-50 (2013) (flight instruction warranted when defendant left 
STATE v. HARRIS

Decision of the Court

5

home and, over the course of 18 days, went to Mexico and used a false 

name, then went to California and abandoned a car, then went to Nevada).

¶12 We review for harmless error an erroneous jury instruction to 

which the defendant objected at trial. See Solis, 236 Ariz. at 287-88, ¶¶ 9-12. 

In this determination, we may affirm a conviction only when the State 

"prove[s] beyond a reasonable doubt that the error did not contribute to or 

affect the verdict or sentence." State v. Henderson, 210 Ariz. 561, 567, ¶ 18 

(2005). In determining whether the State has met this standard, we consider 

both the evidence and the attorneys' statements to the jury. Solis, 236 Ariz. 

at 287-88, ¶¶ 13-14.

¶13 The record here supports beyond a reasonable doubt that the

error was harmless. The girlfriend testified she had recently moved in with 

Harris, they had a romantic relationship and he punched her twice in the 

face on June 27, 2016. Her testimony about the assault was entirely 

consistent with that of the investigating officers who found her, evidence of 

her call to 9-1-1 and the testimony of the hospital staff who treated her. The 

jury saw photographs of the girlfriend's injuries taken shortly after the 

assault and hours later at the hospital. 

¶14 During closing argument, the prosecutor cited the flight 

instruction and told the jury that Harris "ran away" and "didn't stick around 

to help [the girlfriend] get medical treatment." Harris's counsel then drew 

the jury's attention to the erroneous instruction, telling the jury that the 

State "would like you to believe just because he left, that he fled the scene. 

Just because he didn't show up to [his job] the very next day, he's guilty." 

In rebuttal, the prosecutor acknowledged that the flight instruction, by 

itself, would not prove guilt, but asked, "Would you just walk away from 

your house at 10:00 at night, not come back to your residence, . . . not report 

to work . . . ?" 

¶15 The prosecutor's closing argument did not create a reasonable 

doubt that the jury convicted Harris because of the erroneous flight 

instruction. See State v. Valverde, 220 Ariz. 582, 586, ¶ 16 (2009) (statements 

regarding erroneous jury instruction not necessarily prejudicial). Although 

Harris did not testify, an officer testified that when interviewed by police, 

Harris said he knew nothing about any assault. He told officers that a few 

nights before, he had left the girlfriend behind in the apartment after he and 

she had had a disagreement. He was not specific about the date of the 

disagreement. The issue for the jury, therefore, was not why Harris left the 

apartment after the assault. It was whether Harris was present in the 

apartment at the time of the assault. He denied knowing anything about 
STATE v. HARRIS

Decision of the Court

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the assault; by its verdict, the jury believed the girlfriend's account over the 

account Harris gave to officers. Once the jury rejected Harris's statement 

that he knew nothing about any assault, the flight instruction was 

immaterial. 

¶16 In any event, the challenged instruction specifically 

addressed evidence "of the defendant's running away, hiding, or concealing 

evidence." But, as stated, the State did not offer any evidence that Harris 

ran or hid or concealed evidence. Accordingly, if jurors considered the 

flight instruction at all, they would have concluded that the instruction did 

not apply. See Solis, 236 Ariz. at 288, ¶ 14 (error harmless in part because 

court instructed jury to disregard those instructions rendered inapplicable 

by the evidence); State v. Armstrong, 208 Ariz. 360, 363, ¶ 9 (2004) (error not 

harmless when a reasonable jury "could differently assess the evidence").

CONCLUSION

¶17 Although the superior court erred in giving a flight 

instruction, the error was harmless beyond a reasonable doubt. We 

therefore affirm Harris's conviction and the resulting sentence.