State v. Guerrero-Montano ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MANUEL OSMAR GUERRERO-MONTANO, Appellant.
No. 1 CA-CR 20-0003
FILED 9-2-2021
Appeal from the Superior Court in Maricopa County
No. CR2019-115134-001
The Honorable Marvin L. Davis, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Brian Coffman
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
STATE v. GUERRERO-MONTANO
Decision of the Court
B A I L E Y, Judge:
¶1 Defendant Manuel Osmar Guerrero-Montano appeals his
conviction for unlawful flight. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On appeal, we view the evidence in the light most favorable
to sustaining the conviction and resolve all reasonable inferences against
Guerrero-Montano. State v. Karr, 221 Ariz. 319, 320, ¶ 2 (App. 2008). In April
2019, a Phoenix police officer was patrolling in a fully marked SUV when
he heard loud exhaust revving and observed a motorcycle traveling at a
“pretty high rate of speed.” Without activating his lights and sirens, the
officer followed the driver, later identified as Guerrero-Montano, for over a
mile.
¶3 When the officer initiated a traffic stop by turning on his
overhead lights, Guerrero-Montano did not stop but drove between two
lanes of traffic to the intersection. With his overhead lights still activated,
the officer drove directly behind the motorcycle and activated his siren.
¶4 Guerrero-Montano looked back toward the officer, revved the
motorcycle, and accelerated away. The officer then shut off his lights and
sirens and requested support from other officers. Guerrero-Montano was
eventually stopped and arrested.
¶5 The State charged Guerrero-Montano with unlawful flight
from a law enforcement vehicle in violation of A.R.S. § 28-622.01, a class 5
felony. Following a four-day trial, the jury found Guerrero-Montano guilty,
and the court sentenced him to two years of supervised probation.
¶6 We have jurisdiction over Guerrero-Montano’s timely appeal
pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§
12-120.21, 13-4031 and -4033.
DISCUSSION
¶7 Guerrero-Montano argues the prosecutor’s statements to the
jury that “any refusal to stop on command is unlawful flight” were error.
See Matter of Martinez, 248 Ariz. 458, 470, ¶ 47 (2020) (“When reviewing the
conduct of prosecutors in the context of ‘prosecutorial misconduct’ claims,
courts should differentiate between ‘error,’ which may not necessarily
imply a concurrent ethical rules violation, and ‘misconduct,’ which may
suggest an ethical violation.”). To prove prosecutorial error, a defendant
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STATE v. GUERRERO-MONTANO
Decision of the Court
must show that the error “so infected the trial with unfairness as to make
the resulting conviction a denial of due process.” See State v. Johnson, 247
Ariz. 166, 200, ¶ 133 (2019) (quoting State v. Acuna Valenzuela, 245 Ariz. 197,
216, ¶ 66 (2018)). We will reverse a conviction on this ground only if there
is prosecutorial error and a reasonable likelihood the error could have
affected the verdict. See State v. Goudeau, 239 Ariz. 421, 465, ¶ 193 (2016).
Because Guerrero-Montano objected to the prosecutor’s statements, we
review for harmless error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 18
(2005). After the defendant establishes error occurred, State v. Diaz, 223
Ariz. 358, 360, ¶ 11 (2010), the State bears the burden “to prove beyond a
reasonable doubt that the error did not contribute to or affect the verdict or
sentence,” Henderson, 210 Ariz. at 567, ¶ 18.
¶8 “Prosecutors are given wide latitude in presenting closing
argument to the jury.” Goudeau, 239 Ariz. at 466, ¶ 196 (quotations omitted).
Although “[e]ach side is permitted to argue its version of the evidence to
the jury . . .[t]he state may not misstate the law to the jury.” State v. Serna,
163 Ariz. 260, 266 (1990). We evaluate the context in which the prosecutor’s
statements were made as well as the entire record and totality of
circumstances. Goudeau, 239 Ariz. at 466, ¶ 196.
¶9 The court instructed the jury that to prove the crime of
unlawful flight from a pursuing law enforcement vehicle, the State had to
show: “(1) the defendant, who was driving a motor vehicle, willfully fled
from or attempted to elude a pursuing official law enforcement vehicle; and
(2) the law enforcement vehicle was appropriately marked showing it to be
an official law enforcement vehicle.” Rev. Ariz. Jury Instr. (“RAJI”) NCSTI
Crim. 28.622.01 (unlawful flight) (4th ed. 2016); see also A.R.S. § 28-622.01.
Section 28-622.01 applies to marked law enforcement vehicles, “if the driver
of the vehicle while in motion sounds an audible signal by . . . siren . . . as
reasonably necessary and if the vehicle is equipped with at least one lighted
lamp displaying a red or red and blue light.” A.R.S. § 28-624(C).
¶10 At trial, Guerrero-Montano did not dispute that the officer
was driving a fully marked law enforcement vehicle. The record
demonstrates the officer drove up behind Guerrero-Montano and activated
his overhead lights. The officer testified that when Guerrero-Montano
refused to stop, the officer activated his siren and drove directly behind
Guerrero-Montano. After looking over his shoulder, Guerrero-Montano
sped away from the officer.
¶11 We have held “any refusal to stop on command of an officer
who is in a police car violates the felony flight statute because of the potential
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STATE v. GUERRERO-MONTANO
Decision of the Court
for personal danger inherent in vehicular pursuit, even if that pursuit does
not attain excessive speeds or involve reckless driving.” State v. Fogarty, 178
Ariz. 170, 171 (App. 1993). Here, the jury could reasonably conclude that
Guerrero-Montano violated § 28-622.01 by refusing to stop when the officer
pursued him first with activated lights, and then also with sirens. See id.
¶12 The prosecutor’s statements in this context do not misstate the
law. During closing argument, the prosecutor distinguished between a
“pursuit” under Phoenix Police Department policy and the State’s burden
under the statute. Guerrero-Montano then argued: (1) there was no felony-
flight because the officer was not in pursuit per department policy, and (2)
fleeing under A.R.S. § 28-622.01 requires the State to prove more than “just
not stopping.” In rebuttal, the prosecutor addressed the elements of the
statute. Throughout closing argument, the prosecutor’s statements of law
were consistent with precedent. See Fogarty, 178 Ariz. at 171 (“Here, the
defendant simply refused to stop on command and neither took any
evasive action nor led the police on a high-speed chase.”).
¶13 Because the prosecutor did not misstate the law, Guerrero-
Montano has not shown error. Moreover, given the overwhelming
evidence of guilt and the accurate jury instructions, we conclude Guerrero-
Montano has failed to meet his burden. See State v. Ramos, 235 Ariz. 230, 236,
¶ 18 (App. 2014); Goudeau, 239 Ariz. at 466, ¶ 199.
CONCLUSION
¶14 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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