State v. Herndon

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MATTHEW MICHAEL HERNDON, Appellant.

No. 1 CA-CR 22-0476
FILED 7-20-2023

Appeal from the Superior Court in Mohave County
No. S8015CR202100714
The Honorable Billy K. Sipe, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey D. Ball, Harlie Dolin (certified limited practice student)
Counsel for Appellee

Law Offices of Mary Elizabeth Perez, San Diego, CA
By Mary Elizabeth Perez
Counsel for Appellant
 STATE v. HERNDON
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge D. Steven Williams and Judge Samuel A. Thumma joined.

M c M U R D I E, Judge:

¶1 Defendant Matthew Michael Herndon appeals from his
conviction and sentence for aggravated assault. Because we find no error,
we affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Late one evening in June 2021, in rural Mohave County, three
friends were enjoying dinner in a farm field in the bed of a pickup truck.
They noticed a vehicle’s headlights driving onto the farm at some point.
The property was fenced and included signs that prohibited trespassing, so
one of the friends, Bill,2 entered his vehicle to confront the driver and “tell
him to get out of there.”

¶3 As Bill drove closer, the oncoming car nearly struck him. Bill
became irritated with the driver and decided “to chase him down” as he
drove away. He followed the car off the property, eventually getting close
enough to notice the vehicle was a silver sedan. As the vehicles left the
property, Bill called his friends to let them know which way the sedan was
going, and he continued to speak with them during his pursuit. Soon after,
Bill lost sight of the sedan in the darkness. When he found it a few moments
later, the sedan “took off,” and Bill continued to chase it.

¶4 After several minutes, the sedan pulled over. Bill drove
around the right side of the car and parked at an angle ahead of the sedan’s
front right side “so [the driver] wouldn’t go anywhere.” At about the same
time, Bill’s friends arrived and pulled up alongside the sedan’s rear left
taillight.

1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

2 We use a pseudonym to protect the victim’s identity.

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¶5 Bill stepped out of his vehicle, thinking the sedan’s driver
“was going to talk.” But as Bill put one foot on the ground, the sedan drove
into Bill’s open door, dragging him down into the sedan as it pulled away.
When Bill’s friends asked him if he needed help, Bill replied that he was
fine and instructed them to pursue the driver so he would not get away.
The sedan “took off,” and Bill’s friends tried to follow but eventually lost
sight of it. Bill sustained lacerations to his shoulder blade and arm and
scrapes to his ankle.

¶6 A few days later, police found the sedan, linked it to Herndon,
and arrested him. Herndon admitted to the police that he was the sedan’s
only driver, but he denied involvement in a car chase and claimed he was
not near a collision.

¶7 A grand jury indicted Herndon with one count of aggravated
assault with a deadly weapon or dangerous instrument, a Class 3 felony. At
the trial, Bill and his friends described the incident. One of the friends
testified that there was enough room between the vehicles for Herndon to
avoid Bill by turning left or driving in reverse. Bill testified that he feared
being seriously injured when Herndon struck his vehicle.

¶8 After the State’s case, Herndon moved for a judgment of
acquittal, arguing that there was no evidence he acted with the requisite
intent. The court denied the motion. Herndon chose not to testify.

¶9 Before submitting the case to the jury, the court discussed jury
instructions with the parties. The court denied Herndon’s request for a
lesser-included instruction on misdemeanor assault. And over Herndon’s
objection, the court instructed the jury that it could consider evidence of the
defendant “running away, hiding, or concealing evidence” and his reasons
for doing so.

¶10 The jury found Herndon guilty. Based on the jury’s finding of
an aggravating circumstance and Herndon’s prior felony convictions, the
court sentenced Herndon to a slightly aggravated prison sentence of eight
years.

¶11 Herndon appealed, and we have jurisdiction under article 6,
section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A)(1).

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DISCUSSION

¶12 Most of Herndon’s arguments on appeal involve the court’s
jury instructions. We review the court’s decision on whether to give a jury
instruction for an abuse of discretion but review de novo whether it correctly
instructed the jury and whether the instructions correctly state the law. State
v. Ewer, 254 Ariz. 326, 329, ¶ 10 (2023).

A. The Superior Court Did Not Abuse Its Discretion by Giving the
Jury a Flight Instruction.

¶13 Herndon first argues that the court erred by instructing the
jury that it could consider his flight as evidence of guilt because the
instruction was unsupported and “unduly confusing.” Herndon argues
that the evidence only showed that he left the scene, which he asserts cannot
warrant the instruction.

¶14 The court instructed the jury that it “may consider any
evidence of the defendant’s running away, hiding, or concealing evidence”
and his reasons for doing so “together with all the other evidence in the
case.” The court also clarified that such evidence alone does not prove guilt.
The court reasoned that the instruction was warranted because there was
“clear evidence that after the aggravated assault the defendant left the scene
in his vehicle,” which was evidence of “running away, hiding, perhaps even
concealing evidence.”

¶15 A court may give a flight instruction when the evidence
“supports a reasonable inference . . . that the accused utilized the element
of concealment or attempted concealment.” State v. Smith, 113 Ariz. 298, 300
(1976). Although merely leaving the scene is not evidence that warrants a
flight instruction, the instruction may be given “where the circumstances of
leaving the crime scene reveal a defendant’s consciousness of guilt.” State
v. Wilson, 185 Ariz. 254, 257 (App. 1996). The question is whether the jury
could reasonably conclude that the defendant fled to avoid arrest or
detention. State v. Salazar, 112 Ariz. 355, 357 (1975).

¶16 Bill testified that after the collision, Herndon “took off,” and
Bill’s friends pursued but lost him. This evidence supports an inference of
flight under the circumstances. Thus, the State presented evidence that
warranted the flight instruction.

¶17 Herndon also argues that the instruction was unduly
confusing. He contends his departure from the crash site was a continuation
of his escape from Bill rather than an attempt to avoid detention. But

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Herndon presented this position to the jury. “Mere speculation that the jury
was confused is insufficient to establish actual jury confusion.” State v.
Gallegos, 178 Ariz. 1, 11 (1994).

¶18 On this record, the State presented sufficient evidence to
warrant the flight instruction, and Herndon has not shown jury confusion.
Thus, the court did not abuse its discretion by giving the instruction.

B. The Superior Court Did Not Commit Fundamental Error by
Inadvertently Omitting a Word from the Definition of “Dangerous
Instrument” or Declining to Instruct the Jury on Assault.

¶19 Herndon next argues that the court fundamentally erred by
misstating the definition of “dangerous instrument” and declining to give
an assault instruction.

¶20 We apply fundamental error review because Herndon did not
object to the misstated definition at trial. State v. Henderson, 210 Ariz. 561,
567, ¶ 19 (2005). Fundamental error goes to the foundation of the
defendant’s case and is of such magnitude that the trial could not possibly
have been fair. Id. To prevail, Herndon must show fundamental error exists
and that the error prejudiced him. See id. at ¶ 20.

¶21 At trial, the court instructed the jury that a “dangerous
instrument” is “anything that under the circumstances in which it is used,
attempted to be used or threatened to be used is capable of creating a
substantial risk of causing death or serious physical injury.” Under the
statute, however, a dangerous instrument must be “readily capable” of
causing harm. A.R.S. § 13-105(12) (emphasis added). When Herndon
alerted the court to the erroneous instruction after the trial, the court
conceded its inadvertent omission. Still, it declined to grant a new trial,
finding that it did not substantively alter the instruction.

¶22 Herndon argues on appeal that the omission prejudiced him
and, together with the court’s exclusion of an assault instruction,
constituted fundamental error. Had the court correctly defined “dangerous
instrument,” he contends, “the jury very well may have concluded that the
car was not a dangerous instrument.” And from there, the jury could have
found him guilty of the lesser-included offense of assault had the court
given that instruction.

¶23 When reviewing a challenge to jury instructions, we consider
the instructions “as a whole.” Ewer, 254 Ariz. at 329, ¶ 10. But because
Herndon’s argument is founded on prejudice from the misstated definition

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of “dangerous instrument,” we begin our analysis there. To show prejudice,
Herndon must show that, had the court correctly defined dangerous
instrument, the jury reasonably could have reached a different result. See
Henderson, 210 Ariz. at 569, ¶ 27. He may not rely on speculation to meet
this burden. State v. Dickinson, 233 Ariz. 527, 531, ¶ 13 (App. 2013).

¶24 Herndon’s argument is speculative. Besides his conclusory
statement that “the jury very well may have” reached a different
conclusion, he offers no substantial support for the argument. And under
the circumstances of this case, it cannot be said that the jury could have
concluded the vehicle was not a dangerous instrument had the court added
the word “readily” to its instruction. See State v. Williams, 168 Ariz. 367, 371,
(App. 1991) (A car may be a dangerous instrument simply under the
circumstances under which it was used, and the State need not show the
defendant had a specific intent to use the vehicle as a dangerous
instrument.), vacated in part on other grounds, 175 Ariz. 98 (1993).

¶25 The court did not err by declining to give an assault
instruction. Based on the facts here, the jury could believe either that
Herndon assaulted Bill with his vehicle or that Herndon did not assault Bill.
If the jury believed Herndon assaulted Bill, it must have concluded that he
assaulted him with a dangerous instrument. As a result, a lesser-included
assault instruction was not warranted. See State v. Wall, 212 Ariz. 1, 4, ¶ 18
(2006) (A defendant is entitled to a lesser-included instruction if the jury
could find he committed the lesser offense but not the greater offense.); see
also A.R.S. § 13-1203(A)(2) (A person commits assault by “[i]ntentionally
placing another person in reasonable apprehension of imminent physical
injury.”); A.R.S. § 13-1204(A)(2) (A person commits aggravated assault if
the person commits assault under A.R.S. § 13-1203 and “uses a deadly
weapon or dangerous instrument.”).

¶26 Herndon has thus failed to prove prejudice and is not entitled
to relief.

C. The Superior Court Did Not Abuse Its Discretion by Denying
Herndon’s Motion for Judgment of Acquittal.

¶27 Finally, Herndon argues that the court erred by denying his
motion for judgment of acquittal. We review the denial of a motion for
judgment of acquittal de novo. State v. Parker, 231 Ariz. 391, 407, ¶ 69 (2013).
A defendant is entitled to a judgment of acquittal when there is “no
substantial evidence to warrant a conviction.” State v. Mathers, 165 Ariz. 64,
67 (1990); see Ariz. R. Crim. P. 20. Substantial evidence is evidence that

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“reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” Mathers, 165
Ariz. at 67 (quoting State v. Jones, 125 Ariz. 417, 419 (1980)).

¶28 Herndon argues that the facts here show he was “exiting a
hazardous parking situation” rather than committing aggravated assault.
But Herndon essentially asks us to reweigh the evidence, which we will not
do. See State v. Lee, 189 Ariz. 590, 603 (1997). Substantial evidence supports
the jury’s verdict because Bill and his friends testified that Herndon drove
into Bill before taking off, even though there was enough room for Herndon
to avoid a collision. And Bill testified that he feared serious injury at that
moment. Thus, there was enough evidence for the jury to reasonably
conclude that Bill committed aggravated assault with a dangerous
instrument. The court did not err by denying the acquittal motion.

CONCLUSION

¶29 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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