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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIC TSINNIJINNE ANDERSON, Appellant.

No. 1 CA-CR 22-0304 

Appeal from the Superior Court in Coconino County

No. S0300CR201800779

The Honorable Stacy Lynn Krueger, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eric Knobloch

Counsel for Appellee

Coconino County Legal Defender’s Office, Flagstaff

By Joseph Adam Carver

Counsel for Appellant

FILED 5-25-2023
STATE v. ANDERSON

Decision of the Court

2

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding 

Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.

K I L E Y, Judge:

¶1 Eric Tsinnijinne Anderson appeals his convictions and 

sentences for sexual assault and kidnapping. For the following reasons, we 

affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Viewed in the requisite light most favorable to upholding the 

jury’s verdicts, see State v. Kindred, 232 Ariz. 611, 613, ¶ 2 (App. 2013), the 

evidence in the record shows the following: 

¶3 On the evening of July 17, 2018, N.T., a former romantic 

partner of Anderson’s who was in a long-term relationship with 

Anderson’s brother Anthony, visited Anderson, Anderson’s then-fiancée

A.C., and others at Anderson’s home in Page, Arizona. Throughout the 

evening, N.T., Anderson, and A.C. consumed alcoholic beverages.

¶4 At some point, N.T. went to sleep in an unoccupied bedroom.

Several hours later, she was awakened by “pressure” on “the back of [her] 

leg” and looked up to see Anderson standing over her. The shorts and 

underwear she was wearing when she went to bed had been removed.

Anderson started “kissing” and “licking” her face and neck while telling 

her “that he knows that [she] miss[es] this.” When N.T. told Anderson to 

stop and tried “pushing [him] away,” he pressed his forearm against her 

collarbone to hold her down while he digitally penetrated her vulva.

Unable to breathe, N.T. struggled to free herself when she suddenly 

urinated and then fell off the bed. She then got up, ran from the bedroom,

and left the house through the front door as Anderson called after her, “no 

one’s going to believe [you]” and “[you] know [you] wanted it.” As A.C.

later testified at trial, after N.T. exited through the front door “screaming,” 

Anderson walked “really fast” out the back door.

¶5 N.T. ran to a neighbor’s house and banged on the front door 

while screaming, prompting the neighborto call 911. When Sergeant Clouse 

responded to the scene, he found N.T. crouching behind a car on a nearby 
STATE v. ANDERSON

Decision of the Court

3

street. As Clouse later testified, N.T. was “sobbing” and “very upset,” and 

she was not wearing “any pants or shorts or anything.” Clouse’s body-worn 

camera recorded his interaction with N.T.; the video shows her crying and 

gasping for breath while telling Clouse that Anderson touched and choked

her. 

¶6 Meanwhile, Officer Sandoval arrived at Anderson’s home. 

Walking quickly through the backyard with a flashlight, he did not see

Anderson, so he left to search elsewhere. Returning moments later, 

Sandoval noticed Anderson laying on his back on the roof of the home, 

partly concealed by overhanging tree branches. Sandoval told Anderson to 

climb down from the roof. Anderson complied, and Sandoval arrested him.

As Sandoval was placing Anderson in the back of his patrol car, he heard 

Anderson call out to A.C., “I’m not going to see you for a while.”

¶7 After Anderson was arrested and taken from the scene, the 

responding officers sought and obtained A.C.’s consent to search the home.

During their search, they noticed the odor of urine in the bedroom in which 

N.T. had been sleeping that evening. In the same room, they found her 

shorts on the floor and her underwear on the bed. 

¶8 Two days later, N.T. went to a hospital, where she underwent 

a sexual assault examination. The examination revealed bruises on N.T.’s 

upper right arm and shoulder. The nurse conducting the examination took 

body surface swabs from N.T.’s face and neck; the swabs tested positive for 

the presence of male DNA.

¶9 The State charged Anderson with sexual assault and 

kidnapping, both Class 2 felonies. Before trial, Anderson moved in limine to 

admit evidence that, several years earlier, N.T. had purportedly made a 

false sexual assault allegation against Anderson’s brother Anthony. 

Anderson also moved in limine to admit evidence that, when intoxicated, 

N.T. becomes “out of control angry” and “will fabricate stories about 

people hurting her.”

¶10 The superior court held an evidentiary hearing on Anderson’s 

motions. Anthony testified that N.T. “routinely” drinks to excess, and that, 

when she does, “she’ll become angry” and “accuse people” of harming her.

He went on to describe two incidents in which N.T. exhibited such 

behavior. The first occurred in March 2021, when N.T., while intoxicated, 

began hitting herself and then called the police to accuse Anthony of hitting 

her. According to Anthony, he recorded N.T.’s actions that evening and 
STATE v. ANDERSON

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4

played the recording for the police when they arrived to disprove N.T.’s 

report that he had hit her.

¶11 The second incident occurred in August 2012. According to 

Anthony, he returned home from work late one evening when N.T.’s sister 

T.T. intercepted him outside the home and warned him “not to go inside 

because [N.T.] was intoxicated.” At that point, Anthony testified, N.T., who 

was “really drunk,” “ran out” of the house and “yelled out, ‘I’ve been 

raped; I’ve been raped.’” After Anthony admitted on cross-examination 

that N.T. did not state when or where she had been raped or identify the 

perpetrator, Anderson’s lawyer attempted to elicit testimony from Anthony

about something T.T. said that led him to interpret N.T.’s statement “I’ve 

been raped” as an accusation that Anthony had raped her that evening. The 

court sustained the State’s hearsay objection, and Anderson made no offer 

of proof about what T.T. purportedly said to Anthony.

¶12 The court ruled that, pursuant to Arizona Rule of Evidence

(“Rule”) 608(a), Anderson would be permitted to elicit testimony from 

Anthony at trial “as to reputation or opinion of [N.T.’s] truthfulness or 

untruthfulness.” Anderson’s counsel then stated, “I’m asking to get into 

specific instances,” referring to the August 2012 and March 2021 incidents 

that Anthony described in his testimony. The court held that Anthony’s 

testimony about those specific instances of conduct was not admissible 

under Rules 404 or 405 and that Anderson had not met his burden of 

establishing the admissibility of either incident under A.R.S. § 13-

1421(A)(5). Because the March 2021 incident involved no accusation of 

sexual misconduct, the court found that only the August 2012 incident was 

eligible to “be considered for admission under A.R.S. § 13-1421(A)(5).” The 

court went on to hold that Anderson had not met his statutory burden of 

establishing that N.T.’s August 2012 statement “I’ve been raped” was false, 

and that, in any event, N.T.’s statement “would also be precluded” as 

“highly inflammatory and prejudicial.” The court cited Rule 403 as an 

alternative basis for precluding evidence of the August 2012 incident.

¶13 Anderson did not testify or present witnesses at trial and 

made no attempt to elicit reputation or opinion evidence regarding N.T.’s 

propensity for violence, untruthfulness, or any other character trait.

¶14 The jury found Anderson guilty as charged. The superior 

court imposed concurrent prison sentences, the longest being a mitigated 

six-year term for the sexual assault count. This timely appeal followed. We 

have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
STATE v. ANDERSON

Decision of the Court

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DISCUSSION

I. The Superior Court Did Not Abuse Its Discretion in Finding that 

Anderson Failed to Establish the Admissibility of N.T.’s August 2012 

Statement “I’ve Been Raped.”

¶15 A.R.S. § 13-1421, Arizona’s “rape shield” law, permits the

admission at trial of evidence of specific instances of a victim’s conduct only

in limited circumstances. As relevant here, the statute allows admission of 

a victim’s prior statement accusing another of sexual misconduct if the 

proponent of the evidence establishes, by clear and convincing evidence, 

that: (1) the prior accusation was false; (2) the prior accusation is relevant to 

an issue in the pending case; and (3) the prejudicial nature of the prior 

accusation does not outweigh its probative value. A.R.S. § 13-1421(A)(5).

¶16 Anderson challenges the superior court’s preclusion of 

evidence of the statement N.T. made in August 2012. “We review a trial 

court’s decision to preclude evidence under [A.R.S.] § 13-1421 for an abuse 

of discretion.” State v. Herrera, 232 Ariz. 536, 549, ¶ 38 (App. 2013). 

a. The superior court did not abuse its discretion in finding 

that Anderson failed to establish, by clear and convincing 

evidence, that N.T.’s August 2012 statement was a false accusation 

against Anthony.

¶17 In support of his challenge to the court’s ruling precluding 

evidence of N.T.’s August 2012 statement “I’ve been raped,” Anderson 

raises a variety of arguments, many of which were not raised below and are 

unsupported by the record. 

¶18 Interpreting N.T.’s statement “I’ve been raped” as an 

accusation that Anthony raped her that evening, Anderson argues that the 

court should have found the statement admissible under A.R.S. § 13-

1421(A)(5) because, he contends, Anthony “denied” the accusation and 

“[t]he court did not find Anthony incredible.”1 Moreover, Anderson goes 

on, N.T.’s accusation that Anthony raped her that evening was obviously 

1 Anderson’s assertion that Anthony denied having raped N.T. is not 

supported by the record. At no point during the evidentiary hearing was 

Anthony asked whether he had, in fact, raped N.T., and at no point did he 

deny having done so. 
STATE v. ANDERSON

Decision of the Court

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false because it would have been “factually impossible” for Anthony to do 

so since he was at work when the rape allegedly occurred.

¶19 Anderson’s argument assumes that N.T.’s statement “I’ve 

been raped” was intended as an accusation that the rape had occurred that 

evening and that Anthony was the perpetrator. This assumption is 

unwarranted; N.T.’s statement says nothing about who had raped her or 

when or where the rape occurred. As the superior court correctly found, 

N.T.’s statement is insufficiently specific to be construed as an accusation 

that Anthony had raped N.T. that evening.

¶20 Anderson argues that, while N.T.’s statement “I’ve been 

raped” may be ambiguous on its face, something T.T. said to Anthony that 

night filled in the missing content, clarifying that N.T.’s statement was 

intended as an accusation that Anthony had raped her that evening. 

Because “the hearsay rules do not apply at evidentiary hearings,” he 

asserts, the court erred in sustaining the State’s hearsay objection when 

Anderson’s counsel tried to question Anthony at the pretrial hearing about 

what he learned from T.T.

¶21 Because Anderson made no offer of proof at the pretrial 

hearing on his motions in limine, the record does not make clear what, 

exactly, T.T. told Anthony that purportedly clarifies what N.T. meant when 

she said “I’ve been raped.” Indeed, in his opening brief, Anderson admits 

as much, acknowledging that “we don’t know exactly what” T.T. told 

Anthony. Rather than accepting blame for his failure to make an offer of 

proof, however, Anderson faults the trial judge for not “direct[ing] an offer 

of proof.” Because it is the proponent of the evidence who has the 

“obligation to make an offer of proof,” see Coleman v. Amon, 252 Ariz. 107, 

114, ¶ 25 (App. 2021), Anderson cannot avoid the consequences of his 

failure to make an offer of proof by shifting blame to the judge. 

¶22 Absent an offer of proof, we cannot determine whether what 

T.T. told Anthony that night may have shed any light on what, exactly, N.T. 

meant when she said “I’ve been raped.” See State v. Zaid, 249 Ariz. 154, 157, 

¶ 8 (App. 2020) (“An offer of proof serves two purposes: to put the trial 

court in a better position to determine whether it would be erroneous to 

exclude the evidence, and to enable an appellate court to determine 

whether any error was harmful.”). Anderson’s failure to make an offer of 

proof alone warrants denying relief on this claim. See Ariz. R. Evid. 103(a)(2) 

(“A party may claim error in a ruling to . . . exclude evidence only if,” inter 

alia, the party “informs the court of its substance by an offer of proof, unless 

the substance was apparent from the context.”); see also State v. Thompson,
STATE v. ANDERSON

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252 Ariz. 279, 293, ¶¶ 41-42 (2022) (holding that “[t]he trial court did not 

abuse its discretion” in precluding evidence under Rule 403 of murder 

victim’s alleged participation in criminal activity, in part because “the 

record does not reflect precisely what evidence was precluded”).

¶23 In any event, Anderson’s argument that the superior court 

erred at the evidentiary hearing in precluding Anthony’s testimony about 

what T.T. said to him in August 2012 is unavailing. While the court is not 

bound by the Rules of Evidence at a pretrial hearing to determine the 

admissibility of evidence, Ariz. R. Evid. 104(a), the Rules of Evidence apply 

at trial and would have precluded Anthony from telling the jury what T.T. 

said to him that purportedly illuminates the meaning of N.T.’s statement

“I’ve been raped.” Because Anderson called neither N.T. nor T.T. as a 

witness at the evidentiary hearing, he presented no evidence at that hearing 

that would have been admissible at trial to help the jury interpret the 

meaning of N.T.’s non-specific statement. Anderson cannot possibly show 

prejudice from the court’s preclusion, at a pretrial hearing on his motions 

in limine, of hearsay testimony that would have been inadmissible at trial 

anyway. See State v. Cook, 172 Ariz. 122, 125 (App. 1992) (rejecting 

defendant’s challenge to order denying his motion for trial continuance 

where “no prejudice resulted to [defendant]”).

¶24 In his testimony at the evidentiary hearing, Anthony added 

that, after N.T. yelled “I’ve been raped,” N.T.’s other sister, S.T., “came out 

of [the] house, ran towards [him], and just hit [him].” S.T.’s assault on 

Anthony, Anderson now argues, confirms that N.T.’s contemporaneous 

statement was intended as an accusation against Anthony. “Why would 

[S.T.] rush out to attack Anthony as soon as he got home,” he asks, “if N.T. 

hadn’t just accused him of a recent sexual assault?”

¶25 Anderson’s suggestion that S.T.’s act of striking Anthony

after N.T. yelled “I’ve been raped” somehow proves that N.T.’s statement 

was false requires an unwarranted leap of logic. At most, the fact that S.T. 

hit Anthony indicates that S.T. believed that Anthony had raped N.T. But 

S.T.’s interpretation of N.T.’s statement “I’ve been raped” does not support 

a finding that N.T.’s statement constitutes a false accusation against 

Anthony.

¶26 Further, Anderson never argued at the pretrial evidentiary 

hearing that S.T.’s actions that evening were relevant to show that N.T. 

falsely accused Anthony of rape. Because the prosecutor had no 

opportunity to respond to this argument, and the court no opportunity to 

consider it, we find this argument waived and will not consider it further. 
STATE v. ANDERSON

Decision of the Court

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See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994) (“Because a trial court and 

opposing counsel should be afforded the opportunity to correct any 

asserted defects before error may be raised on appeal, absent extraordinary 

circumstances, errors not raised in the trial court cannot be raised on 

appeal.”). 

b. The superior court did not abuse its discretion in finding 

that Anderson failed to establish that the probative value of N.T.’s 

August 2012 statement outweighed the opposing considerations 

set forth in A.R.S. § 13-1421(A)(5) and Rule 403.

¶27 Nowhere in his opening brief does Anderson challenge the 

superior court’s determination that he failed to meet his statutory burden 

to establish that the probative value of N.T.’s August 2012 statement 

outweighed its “inflammatory or prejudicial nature.” A.R.S. § 13-

1421(A)(5). On the contrary, Anderson denies that A.R.S. § 13-1421(A)(5) 

requires a balancing of the probative value of proffered evidence against its 

prejudicial nature. According to Anderson, once the proponent of evidence 

of a prior false accusation of sexual misconduct presents “clear and 

convincing evidence” that the “alleged victim’s previous claims of sexual 

assault were actually false,” the court’s inquiry is at an end. Evidence of a 

prior false allegation is necessarily admissible, Anderson contends, because

“preclusion fails to serve any legitimate goals of the rape shield statute.”

¶28 Anderson’s argument ignores the express language of A.R.S. 

§ 13-1421(A)(5), which makes clear that whether the victim in a sexual 

assault case made a prior “false allegation[] of sexual misconduct” and 

whether “the inflammatory or prejudicial nature of” the prior false 

allegation “outweigh[s] the probative value of the evidence” are two 

separate inquiries. 

¶29 Because Anderson does not challenge the superior court’s 

determination under A.R.S. § 13-1421(A)(5) that the probative value of 

N.T.’s August 2012 statement was outweighed by the prejudicial nature of 

the evidence, we consider any such argument waived. See State v. Barraza, 

209 Ariz. 441, 447, ¶ 20 (App. 2005).

¶30 Likewise, Anderson does not challenge the superior court’s 

related determination that the probative value of the evidence was 

outweighed by other Rule 403 considerations. See Ariz. R. Evid. 403 (“The 

court may exclude relevant evidence if its probative value is substantially 

outweighed by a danger of . . . unfair prejudice, confusing the issues, 

misleading the jury, undue delay, [or] wasting time[.]”). Anderson has 
STATE v. ANDERSON

Decision of the Court

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therefore waived any challenge to the court’s Rule 403 balancing. See

Barraza, 209 Ariz. at 447, ¶ 20. The court’s unchallenged determinations that 

the probative value of the August 2012 statement was outweighed by 

opposing considerations set forth in A.R.S. § 13-1421(A)(5) and Rule 403

provide a sufficient basis to affirm the court’s preclusion order. 

¶31 An issue not properly presented in the parties’ briefing may 

nonetheless be reviewed for fundamental error. Id. at 447, ¶ 21; see also State 

v. Fernandez, 216 Ariz. 545, 554, ¶ 32 (App. 2007) (“[W]e will not ignore 

[fundamental error] when we find it.”). Fundamental error is “error” that 

“went to the foundation of the case, . . . took from the defendant a right 

essential to his defense, or . . . was so egregious that he could not possibly 

have received a fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). 

¶32 The order precluding Anthony from testifying that N.T. 

yelled “I’ve been raped” one evening in August 2012 cannot possibly be 

said to have denied Anderson a fair trial or to otherwise constitute 

fundamental error. N.T.’s statement that she had been raped by an 

unidentified person on an unspecified occasion was clearly more likely to 

confuse than assist the jury in determining whether Anderson was guilty of 

the crimes he was charged with committing six years later. 

¶33 For the same reasons, the superior court’s unchallenged 

preclusion of evidence of N.T.’s August 2012 statement under Rule 403 

could not possibly constitute fundamental error. “Balancing of Rule 403

factors” is “a matter particularly and appropriately left to the trial court’s 

discretion,” State v. Rose, 231 Ariz. 500, 513, ¶ 62 (2013), and we will not 

substitute our judgment for that of the superior court. See also United States

v. Cohen, 887 F.3d 77, 85-86 (1st Cir. 2018) (stating that trial court “has wide 

discretion in steadying the Rule 403 seesaw,” and “[o]nly rarely—and in 

extraordinarily compelling circumstances—will we, from the vista of a cold 

appellate record, reverse a [trial] court’s on-the-spot judgment concerning 

the relative weighing of probative value and unfair effect”) (citation 

omitted).

II. Anderson’s Claim that the Superior Court Improperly Precluded 

Reputation Evidence is Not Supported by the Record.

¶34 Anderson argues that the superior court abused its discretion 

by “prevent[ing] [him] from presenting evidence of N.T.’s reputation for 

‘out of control’ behavior while intoxicated.” He asserts that, because he 

anticipated that the State would present evidence at trial that “N.T. was 

screaming and highly distressed” when the police arrived at the scene in 
STATE v. ANDERSON

Decision of the Court

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July 2018, he “wanted to present evidence that N.T. had a reputation for 

getting ‘out of control angry’ when intoxicated.” Such evidence, he 

contends, would show that N.T.’s emotional demeanor as seen in Sergeant 

Clouse’s body-worn camera video resulted from her intoxication and not 

from anything Anderson had done. Noting that the State argued to the 

jurors that N.T.’s evident distress “indicated she was telling the truth” 

about Anderson sexually assaulting her, Anderson complains that the 

court’s evidentiary rulings left him unable to rebut the State’s argument

with evidence of N.T.’s “history of hysterical behavior while intoxicated.” 

¶35 Anderson misstates both the position he took in the superior 

court and the superior court’s rulings. When Anderson moved in limine for 

leave to present evidence of N.T.’s “character trait” for “becoming angry, 

violent, and vicious to the point of fabricating wrongs being done to her” 

when she “becomes intoxicated,” he did not identify the specific type of 

evidence he sought to offer to establish this purported character trait. At a 

prior comprehensive pretrial conference, Anderson agreed that evidence of 

specific instances of N.T.’s intoxication on other occasions was 

inadmissible.2 At the evidentiary hearing on the motions in limine, however, 

Anderson changed his position, seeking leave to present evidence of 

specific instances of N.T.’s conduct while intoxicated in August 2012 and 

March 2021 to establish her purported propensity for “becom[ing] irate and 

angry with people and to fabricate accusations.” Such evidence, he argued, 

would bolster his defense that N.T. “fabricated” the “bad actions” she 

accused him of. The superior court properly held that neither Rule 404 nor 

405 permitted Anderson to elicit testimony from Anthony of specific 

instances of N.T.’s prior conduct to attack her credibility. See State v. 

Gilfillan, 196 Ariz. 396, 404, ¶ 27 n.5 (App. 2000) (“Opinion and reputation 

evidence may be admitted to prove a person’s character for truthfulness if 

attacked, but specific past acts of untruthfulness may be excluded by the 

trial court if unrelated to the instant situation.”). The court went on to hold 

that Anderson could properly attack N.T.’s credibility at trial with 

reputation and opinion evidence pursuant to Rule 608, but Anderson 

offered no such evidence at trial.

¶36 Although Anderson changed his position during the 

proceedings below about whether he sought to introduce evidence of N.T.’s 

reputation for making false accusations when intoxicated or evidence of 

2 When the court asked if Anderson objected to restricting evidence of 

N.T.’s alcohol consumption to the evening of July 17, 2018, defense counsel 

responded that Anderson did not object, admitting that “there’s no 

relevance” to N.T.’s alcohol consumption on any other occasion.
STATE v. ANDERSON

Decision of the Court

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specific instances of her conduct in making false accusations on prior 

occasions, and although Anderson offered differing theories for the 

admissibility of such evidence, at no point did Anderson present the 

argument he now raises on appeal. At no point, in other words, did 

Anderson argue to the superior court that evidence of N.T.’s reputation for 

being agitated when intoxicated, or of specific instances of such conduct, 

was admissible to provide an alternative explanation for N.T.’s emotional 

demeanor on the evening of July 17, 2018. Because he never presented that 

argument to the superior court, he cannot obtain relief by raising it for the 

first time on appeal. State v. Moody, 208 Ariz. 424, 455, ¶ 120 (2004)

(explaining that evidentiary objections waived if raised for the first time on 

appeal); see also State v. Blakley, 204 Ariz. 429, 438, ¶ 41 (2003) (holding 

challenge to ruling excluding evidence was “waived” because defendant 

“never presented the trial court with a legal basis for admitting” the 

excluded evidence).

¶37 Anderson argues that the court’s evidentiary rulings, taken as 

a whole, violated his “fundamental constitutional right to present a 

complete defense.”

¶38 The Due Process Clause of the Fourteenth Amendment to the 

United States Constitution guarantees the right of criminal defendants to 

“be afforded a meaningful opportunity to present a complete defense.” 

California v. Trombetta, 467 U.S. 479, 485 (1984). The right is not, however, 

“without limitations,” State v. Gentry, 247 Ariz. 381, 385, ¶ 15 (App. 2019), 

and does not bar a trial court from excluding evidence simply because “the 

defendant would prefer to see that evidence admitted,” Crane v. Kentucky, 

476 U.S. 683, 690 (1986). The right to present a complete defense does not, 

in other words, prevent courts from “exclud[ing] evidence through the 

application of evidentiary rules.” Id. Because the superior court did not 

abuse its discretion in applying A.R.S. § 13-1421(A)(5) or the relevant 

evidentiary rules, the court’s evidentiary rulings did not violate Anderson’s 

right to present a complete defense.

III. The Superior Court Did Not Err in Giving a Flight Instruction.

¶39 Over Anderson’s objection, the 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 
STATE v. ANDERSON

Decision of the Court

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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.

¶40 Anderson contends the flight instruction was unwarranted 

because he did not leave the crime scene and his presence on the roof of his 

home when the police arrived at the scene “is insufficient to establish an 

inference of hiding or concealment.” “[J]ust because he was on the roof of 

his own home when the police arrived,” he insists, doesn’t prove he was 

“hiding.”

¶41 “Instructing on flight is proper when the defendant’s conduct 

manifests a consciousness of guilt.” State v. Cutright, 196 Ariz. 567, 570, ¶ 12 

(App. 1999), disapproved on other grounds by State v. Miranda, 200 Ariz. 67, 69, 

¶ 5 (2001). Evidence that the defendant departed the crime scene is not 

necessary to justify a flight instruction; evidence that the defendant 

attempted to hide, rather than flee, may support such an instruction. State

v. Hunter, 136 Ariz. 45, 49 (1983) (“[E]ither fleeing the scene as upon open 

pursuit or concealment is sufficient to support a flight instruction.”); see also

Carter v. State, 121 P.3d 592, 599 (Nev. 2005) (holding that evidence that 

defendant “concealed himself under a pile of clothes in his apartment” 

while defendant’s wife misled police about his whereabouts “supported the 

[flight] instruction”). We review the trial court’s decision to give a flight 

instruction for abuse of discretion. State v. Solis, 236 Ariz. 285, 286, ¶ 6 (App. 

2014).

¶42 Evidence that, as soon as N.T. ran from the house screaming, 

Anderson walked out “really fast” through the back door, and soon 

thereafter was found on the roof of the house, supports an inference that he 

was attempting to conceal himself in anticipation of the arrival of the police. 

Indeed, Officer Sandoval did not see Anderson during his initial search of 

the backyard, thus indicating that Anderson not only attempted to conceal 

himself, but succeeded, even if only temporarily. Although Anderson posits 

the existence of alternative explanations for his presence on the roof

(asserting, for example, that he “was probably asleep” up there), an 

alternative explanation for the defendant’s actions does not preclude giving 

a flight instruction. See State v. Parker, 231 Ariz. 391, 404, ¶ 50 (2013) (stating 

that defendant’s “explanation for his flight did not preclude the trial court 

from giving a flight instruction” but “simply created a fact question for the 

jury to decide”). We find no error in the giving of a flight instruction. See 

State v. Swinburne, 116 Ariz. 403, 414 (1977) (holding that a defendant’s 

“activities” that “constitute concealment . . . support the giving of an 

instruction on flight”).
STATE v. ANDERSON

Decision of the Court

13

¶43 In his reply brief, Anderson argues, for the first time, that the 

court abused its discretion in giving a flight instruction because he asserted

a consent defense. According to Anderson, a flight instruction “assum[es] 

a crime was committed,” and so cannot properly be given “[w]hen the 

central issue at trial is whether a crime occurred at all.” Anderson cites no 

authority for this novel proposition, and we are aware of none. See Carter, 

121 P.3d at 594, 599 (holding that trial court did not abuse its discretion in 

giving flight instruction at sexual assault trial where defendant asserted 

that charged sexual acts were consensual). In any event, Anderson never 

raised this argument in his opening brief (or at trial, for that matter), and so 

he has waived it. See State v. Brown, 233 Ariz. 153, 163, ¶ 28 (App. 2013) 

(“Arguments raised for the first time in a reply brief . . . are waived.”). 

¶44 Even assuming that the court erred in giving the flight 

instruction, the error was harmless. See Solis, 236 Ariz. at 288, ¶ 14 (finding 

improperly given flight instruction was harmless error). The court did not 

tell the jurors that flight or concealment had in fact occurred, nor did the flight 

instruction lead the jurors to conclude that flight or concealment was, by 

itself, conclusive of guilt. On the contrary, by its terms, the instruction 

informed the jurors that “[r]unning away or hiding after a crime has been 

committed does not by itself prove guilt.” (Emphasis added.) The court further 

instructed the jurors that, “[a]s you determine the facts, . . . you may find 

that some instructions no longer apply,” thus making clear that the jurors 

were free to disregard the flight instruction if they found that no flight or 

concealment had occurred. 

¶45 Moreover, the evidence of Anderson’s guilt was 

overwhelming and included N.T.’s testimony describing the events of July 

17, 2018; the physical evidence that corroborated N.T.’s account of those 

events, including the odor of urine in the bedroom where she was sleeping 

and the male DNA found on swabs taken from her face and neck; N.T.’s

hurried departure from the home naked from the waist down; Anderson’s 

statements to N.T. as she ran from the home (i.e., “no one’s going to believe 

you” and “you know you wanted it”); A.C.’s testimony that, as soon as N.T. 

ran out the front door screaming, Anderson left “really fast” through the 

back door; and Anderson’s statement to A.C. as he was being taken away 

by the police (i.e., “I’m not going to see you for a while.”). In view of the 

overwhelming evidence of guilt, any error in giving the flight instruction 

was harmless. State v. Wilson, 253 Ariz. 191, 198-99, ¶ 28 (App. 2022) (“If 

evidence is so overwhelming that any reasonable jury could only reach a 

conclusion of guilt, we can find error harmless.”). 

CONCLUSION
STATE v. ANDERSON

Decision of the Court

14

¶46 Anderson’s convictions and sentences are affirmed.