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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                VICTOR PIERRE BENTO SILVA, Appellant.

                             No. 1 CA-CR 16-0183
                               FILED 3-21-2017


            Appeal from the Superior Court in La Paz County
                        No. S1500CR201500062
              The Honorable Samuel E. Vederman, Judge

 AFFIRMED IN PART; MODIFIED IN PART; REMANDED IN PART


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

David Goldberg Attorney at Law, Fort Collins
By David Goldberg
Counsel for Appellant
                            STATE v. SILVA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.


B E E N E, Judge:

¶1            Victor Pierre Bento Silva appeals his convictions and
sentences for first-degree murder, unlawful flight from law enforcement,
conspiracy to commit drive-by shooting, and theft. For the reasons that
follow, we affirm in part, modify in part, and remand for resentencing.

                             BACKGROUND1

¶2           On February 16, 2015, Fairfax, California police officers
responded to a reported home invasion. Among other items, the residents
reported five weapons that had been stolen, including a rifle and a
handgun.

¶3           Acting on a tip, police officers then searched Stephanie Hill’s
storage locker and recovered other items that had been reported stolen.
They also learned that Silva was associated with the locker and found
several documents bearing his name.

¶4            A week after the burglary, two Novato, California police
officers conducted a traffic stop of a car Hill was driving. Seeing a rifle on
the floorboard of the car, the officers drew their weapons and ordered Hill
and passenger Silva to show their hands. Refusing to comply, Hill engaged
in a physical altercation with one of the officers through the driver’s-side
window. Eventually, after Hill was able to break free from the police
officer, the vehicle fled the scene. The officers immediately attempted
pursuit, but were unable to locate the vehicle. They then requested and
obtained an arrest warrant for Hill for evading and resisting arrest.

¶5           Five days later, Riverside County deputies responded to an
interagency request to locate two “armed and dangerous” suspects driving
a 2015 black Chevy Tahoe. Using coordinates from a cellular phone

1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).



                                      2
                              STATE v. SILVA
                             Decision of the Court

believed to be inside the vehicle, deputies located the Tahoe in Coachella
and attempted to initiate a felony stop. At first, the driver, Silva, followed
the deputies’ commands to place his left hand outside the driver’s-side
window. Moments later, however, Silva retracted his hand and the Tahoe
sped away.

¶6             A chase ensued, with numerous law enforcement vehicles
following the Tahoe onto Interstate 10 heading eastbound toward the
Arizona border. During the course of the pursuit, the Tahoe traveled at
speeds in excess of 130 miles per hour and the passenger, Hill, repeatedly
shot at civilian vehicles.

¶7             As the Tahoe crossed the border into Arizona, it ran over
spike strips laid across the roadway by law enforcement, spun, and
careened off the interstate. Once the Tahoe stopped, Silva and Hill emerged
from the vehicle and began running across the Arizona desert. Initially,
Silva ran ahead and then waited for Hill to catch up, but eventually the
subjects separated and ran off in different directions. Silva eventually
stopped and complied with officers’ commands to place his hands in the
air. As Silva surrendered, officers who had pursued Hill saw her reach into
her pocket and partially remove a black handgun. An officer shot Hill
repeatedly and she fell to the ground. Silva was taken into custody and Hill
was declared dead at the scene.

¶8              Following his arrest, Silva admitted stealing at least $10,000
as part of a California burglary. He also admitted that he and Hill had
devised a strategy for evading police officers during the chase that ended
in his arrest, and agreed to shoot at civilian vehicles in an effort to cause flat
tires, disable vehicles, and thereby block pursuing officers.

¶9            The State charged Silva with one count of first-degree felony
murder (underlying felony – unlawful flight), and one count of unlawful
flight. Under a different cause number, the State later charged Silva with
four counts of conspiracy, three counts of theft, two counts of misconduct
involving weapons, and three drug offenses. Upon the State’s request, the
two cases were joined. The State subsequently moved to dismiss one count
of conspiracy and both counts of misconduct involving weapons, which the
superior court granted. The court also granted Silva’s motion to sever the
drug charges, leaving only the felony murder, unlawful flight, conspiracy
(three counts) and theft (three counts) charges for trial.




                                        3
                             STATE v. SILVA
                            Decision of the Court

¶10             At trial, the State presented evidence of various stolen items
that were seized from the Tahoe, including jewelry and a rifle. An officer
also testified that $5,500 was found on the ground near Hill’s body.

¶11             Taking the witness stand in his own defense, Silva testified
that he primarily acted under duress during the chase. Although he
acknowledged that he did not say so during his police interview, Silva
testified that Hill, his wife, had threatened to shoot him if he complied with
police officers during the Coachella felony stop, and held him at gunpoint
the entire drive from Coachella to the Arizona border. When asked about
the plan he and Hill had devised to shoot at civilian vehicles, Silva stated
that Hill initially wanted to shoot people, and he had convinced her to aim
only for tires. He also claimed that “at least” $5,000 of the cash found next
to Hill was his, although he admitted that Hill had counted at least $10,000
in cash stolen from a home invasion.

¶12           After an eleven-day trial, the jury found Silva guilty of first-
degree felony murder, unlawful flight, two counts of conspiracy
(conspiracy to hinder prosecution and conspiracy to commit drive-by
shooting), and theft in the amount of $25,000 or more. At sentencing, the
superior court merged the two conspiracy counts, finding that there was
“only one conspiracy.” The court then sentenced Silva to a mitigated term
of four and one-half years’ imprisonment for theft, a consecutive, mitigated
term of four and one-half years’ imprisonment for conspiracy to commit
drive-by shooting, a consecutive, mitigated term of one year imprisonment
for unlawful flight from law enforcement, and a term of life imprisonment
for the count of first-degree murder, to be served concurrent to the term for
unlawful flight. Silva timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-
4031, and -4033(A)(1) (2010).

                                DISCUSSION

   I.      Jurisdiction

¶13            Silva contends the superior court lacked jurisdiction to try
him on the charges of theft and conspiracy to commit drive-by shooting
because the alleged conduct occurred in California. Accordingly, he argues
the superior court erred by denying his motion to dismiss those charges for
lack of jurisdiction.

¶14            Subject matter jurisdiction is a question of law that we review
de novo. State v. Flores, 218 Ariz. 407, 410, ¶ 6 (App. 2008). Pursuant to A.R.S.



                                       4
                            STATE v. SILVA
                           Decision of the Court

§ 13-108 (2010), Arizona has jurisdiction over “an offense that a person
commits by his own conduct or the conduct of another” if, as relevant here:

       1. Conduct constituting any element of the offense or a result
          of such conduct occurs within this state; or

       2. The conduct outside this state constitutes an attempt or
          conspiracy to commit an offense within this state and an
          act in furtherance of the attempt or conspiracy occurs
          within this state[.]

¶15           Addressing the theft charge first, the State alleged that Silva
knowingly controlled property that he knew or had reason to know
belonged to someone else, and that he exerted the element of control within
Arizona, having transported the stolen property across the state line. See
A.R.S. § 13-1802(A)(5) (Supp. 2016). Because Silva was charged with
committing conduct within the State that constituted an element of theft,
the superior court properly exercised jurisdiction over the charge pursuant
to A.R.S. § 13-108(1). See also Ariz. Const. art. 6, § 14(4) (stating superior
courts have jurisdiction over “[c]riminal cases amounting to felony”).

¶16            Turning to the drive-by shooting conspiracy charge, a person
conspires if, acting with the intent to promote or aid the commission of an
offense, such person agrees with one or more persons that at least one of
them or another person will engage in conduct constituting the offense and
one of the parties commits an overt act in furtherance of the offense, except
that an overt act shall not be required if the object of the conspiracy was to
commit any felony upon another person. A.R.S. § 13-1003(A) (2010). As set
forth in A.R.S. § 13-1209(A)(2) (2010), a person commits drive-by shooting
by intentionally discharging a weapon from a motor vehicle at a person,
another occupied motor vehicle or an occupied structure. Reading the
statutes together, the elements of conspiracy to commit drive-by shooting
are: (1) an intent by the defendant to promote or assist the commission of
drive-by shooting, and (2) an agreement between the defendant and
another person that one of them or another person will intentionally
discharge a weapon from a vehicle at a person or an occupied vehicle or
structure.

¶17           Based on Silva’s statements to police, the State alleged that
Silva and Hill agreed that Hill would shoot at the tires of other vehicles in
an attempt to disable those vehicles so they would block pursuing officers.
Meanwhile, Silva, in furtherance of their overall objective to elude law
enforcement, would drive the Tahoe at a high rate of speed to outpace the



                                      5
                             STATE v. SILVA
                            Decision of the Court

chasing police cars. Although the State concedes that Silva and Hill did not
shoot at any vehicles in Arizona, there is no evidence that Silva and Hill
took any affirmative measures to end their agreement before their vehicle
came to a stop. To the contrary, all evidence reflects that the object of their
conspiracy, namely, to evade capture, continued into Arizona, and thus
there is no basis to conclude the conspiracy to commit drive-by shooting
ended before Silva and Hill crossed into Arizona. See State v. Cruz, 137 Ariz.
541, 547 (1983) (explaining a “conspiracy may continue after the
commission of the substantive offense” when the “object of the conspiracy
includes more than the commission of a substantive offense”); see also State
v. Gaydas, 159 Ariz. 277, 279 (App. 1988) (“A conspiracy generally ends once
its criminal objective is attained.”). Moreover, although no overt act was
necessary to prove a conspiracy under A.R.S. § 13-1003(A), Silva’s
continued high-speed driving into Arizona and Hill’s continued possession
of a weapon qualified as acts in furtherance of the conspiracy sufficient to
extend jurisdiction under A.R.S. § 13-108(A)(1). Therefore, the superior
court properly exercised jurisdiction over the drive-by shooting conspiracy
charge.2

    II.    Alleged Prosecutorial Vindictiveness

¶18          Silva contends the State acted with vindictiveness by bringing
a second indictment containing additional charges, and the superior court
therefore improperly denied his motion to dismiss on that basis.

¶19           We review a superior court’s disposition of a claim of
prosecutorial vindictiveness for an abuse of discretion. State v. Brun, 190
Ariz. 505, 506 (App. 1997). A prosecutor’s decision to file new charges is
vindictive if made in retaliation for the defendant’s exercise of a
constitutional or statutory right. Id.

¶20           “A defendant may such demonstrate prosecutorial
vindictiveness by proving objectively that the prosecutor’s charging
decision was motivated by a desire to punish him for doing something that
the law plainly allowed him to do.” State v. Tsosie, 171 Ariz. 683, 685 (App.
1992) (internal quotation omitted). “Because actual vindictiveness is
difficult to prove, a defendant in some circumstances may rely on a


2     To the extent Silva also argues the superior court lacked jurisdiction
because the State failed to prove that he transported stolen property with a
value of $25,000 or greater into Arizona, this claim is not properly framed
as a matter of jurisdiction, but one of sufficiency of the evidence, which we
address infra, ¶¶ 45-46.


                                      6
                             STATE v. SILVA
                            Decision of the Court

presumption of vindictiveness.” Brun, 190 Ariz. at 506 (internal quotation
omitted). A presumption of vindictiveness may lie in a pretrial setting, but
its application at that stage of the proceedings is disfavored because “[i]n
the course of preparing a case for trial, the prosecutor may uncover
additional information that suggests a basis for further prosecution or he
simply may come to realize that information possessed by the State has a
broader significance.” United States v. Goodwin, 457 U.S. 368, 381 (1982).
Therefore, to warrant a presumption of vindictiveness in the pretrial
setting, the defendant must set forth “additional facts” that, combined with
the sequence of events, justify the presumption. Brun, 190 Ariz. at 507. “If
a defendant makes a prima facie showing that the charging decision is more
‘likely than not attributable to vindictiveness’ by the prosecutor, the burden
shifts to the prosecutor to overcome the presumption ‘by objective evidence
justifying the prosecutor’s action.’” State v. Mieg, 225 Ariz. 445, 448, ¶ 12
(App. 2010) (citations omitted).

¶21            In the initial indictment, filed March 4, 2015, the State charged
Silva with one count of first-degree felony murder and one count of
unlawful flight from law enforcement. At the April 13, 2015 pretrial
conference, Silva requested that a firm trial date be set. The State did not
object, but advised the court that new charges were “pending[.]” The court
then set a trial date of July 28, 2015.

¶22           On May 26, 2015, the initial prosecutor assigned to the case
moved to have the matter designated a complex case.3 On June 9, 2015, the
State filed a complaint in CR 2015-00169 charging Silva with thirteen
additional counts. The next day, the superior court issued a written order
for a complex case designation and set a new trial date of December 4, 2015,
based on the complex case designation. On the same day, the succeeding
prosecutor presented Silva with a plea agreement. At the June 29, 2015
pretrial conference, Silva rejected the State’s plea offer.

¶23          On July 1, 2015, the State filed an indictment in CR 2015-00169
charging Silva with the thirteen additional counts alleged in the June 9, 2015
complaint. Also on July 1, 2015, the State moved to join CR 2015-00062 and
CR 2015-00169, which the superior court granted. At the subsequent
Donald4 hearing, Silva rejected an offer by the State to allow him to plead



3      Once designated a “complex case,” an individual shall be tried 270
days from arraignment. Ariz. R. Crim. P. 8.2(a)(3).

4      State v. Donald, 198 Ariz. 406, 418, ¶ 46 (App. 2000).


                                       7
                             STATE v. SILVA
                            Decision of the Court

guilty to second-degree murder with a sentence no greater than the
presumptive term of sixteen years, and a dismissal of all other charges.

¶24             Over four months later, Silva moved to dismiss on the basis
of vindictive prosecution. At the hearing on the motion, the prosecutor
noted that the previous prosecutor filed the additional charges “around the
same time” as he moved to designate the case complex. When asked about
the delay in filing a second indictment, the prosecutor explained that after
the case was reassigned to her, it took some time for her to sort and process
all of the information and make “appropriate charging and offer decisions.”
After hearing from the parties, the superior court found that Silva had set
forth a “prima facie case” of vindictiveness, but concluded the prosecutor
rebutted the presumption because the delay could be attributed to
“disorganization, incompetence, [and] ignorance.”

¶25            Notwithstanding the superior court’s finding, the record
reflects that Silva failed to set forth sufficient facts that, together with the
sequence of events, warranted a presumption of vindictiveness. To the
extent Silva argues the State filed additional charges in retaliation for his
exercise of the right to a speedy trial, the record reflects that the complex
case designation, not the filing of additional charges, extended the last day
for trial. Likewise, to the extent Silva argues the State brought additional
charges because he rejected the State’s plea offer, it is undisputed that the
prosecutor informed the court that additional charges were pending when
Silva requested a firm trial date in April 2015, and that such charges were
alleged in the complaint filed on June 9, 2015, events predating the State’s
plea offer.

¶26            Nonetheless, even if Silva established a prima facie case of
vindictiveness, as found by the superior court, the State rebutted the
presumption. The record reflects that the prosecutor was not assigned to
the case until late May, and she avowed that it took her a substantial period
of time to review the case and thoroughly assess the appropriate charges.
The superior court was in the best position to evaluate the prosecutor’s
credibility, and concluded the delay was not attributable to “bad faith or
maliciousness.” See State v. Canez, 202 Ariz. 133, 147, ¶ 28 (2002) (“We give
great deference to the trial court’s ruling, based, as it is, largely upon an
assessment of the prosecutor’s credibility.”), abrogated on other grounds by
State v. Valenzuela, 239 Ariz. 299 (2016). Therefore, the superior court did
not abuse its discretion by denying Silva’s motion to dismiss the charges.
See State v. Perez, 141 Ariz. 459, 464 (1984) (explaining that appellate courts
have the obligation “to affirm the trial court’s ruling if the result was legally
correct for any reason”).


                                       8
                             STATE v. SILVA
                            Decision of the Court

   III.   Denial of Motion for Mistrial

¶27            Silva argues the superior court erred by denying his motion
for mistrial. Specifically, he asserts the superior court should have declared
a mistrial after a witness referred to evidence that had been precluded by a
previous court order.

¶28            We review the denial of a motion for mistrial for an abuse of
discretion. State v. Jones, 197 Ariz. 290, 304, ¶ 32 (2000). In evaluating
whether a mistrial is warranted under these circumstances, the superior
court “is in the best position to determine whether the evidence will
actually affect the outcome of the trial.” Id. To make this determination,
the superior court should consider “(1) whether the remarks called to the
attention of the jurors matters that they would not be justified in
considering in determining their verdict, and (2) the probability that the
jurors, under the circumstances of the particular case, were influenced by
the remarks.” State v. Hallman, 137 Ariz. 31, 37 (1983). Because “a
declaration of a mistrial is the most dramatic remedy for trial error,” it
should be granted “only when it appears that justice will be thwarted unless
the jury is discharged and a new trial granted.” State v. Adamson, 136 Ariz.
250, 262 (1983).

¶29            Prior to trial, the superior court granted Silva’s motion to
preclude all evidence pertaining to the murder of one of the California
home invasion victims, concluding the probative value was substantially
outweighed by the danger of unfair prejudice. On the second day of trial,
however, a trooper with the Arizona Department of Public Safety testified
that he received a call on February 28, 2015 alerting him that California law
enforcement personnel “were chasing two homicide suspects and they
were approaching the Arizona border.” Silva immediately raised an
objection, which the superior court sustained. Silva then moved for a
mistrial, arguing testimony of that nature had been expressly precluded by
court order. After the prosecutor avowed that she had instructed all of the
State’s witnesses, both orally and in writing, not to reference the homicide
allegations, the superior court denied the motion for mistrial, but struck the
trooper’s answer and instructed the jury not to consider it.

¶30           Given the broad scope of the superior court’s preclusion
ruling, the trooper’s statement was clearly inadmissible. The court
sustained the defense objection, however, and struck the testimony and
instructed the jury to disregard the answer, which minimized the
possibility that the fleeting and isolated reference to precluded evidence
may have influenced the jury’s verdicts. See State v. Miller, 234 Ariz. 31, 40,


                                      9
                               STATE v. SILVA
                              Decision of the Court

¶ 25 (2013) (“[W]hen a witness unexpectedly volunteers an inadmissible
statement, the action called for rests largely within the discretion of the trial
court . . . [to] decide if some remedy short of mistrial will cure the error.”).
Because we presume a jury follows instructions, and Silva has not
presented any evidence to overcome that presumption, the statement,
though improper, was harmless. See State v. Goudeau, 239 Ariz. 421, 469, ¶
214 (2016). Therefore, the superior court did not abuse its discretion by
denying Silva’s motion for mistrial.

   IV.       Jury Instructions

¶31           Silva challenges the superior court’s final instruction to the
jury on causation. He contends that the instruction failed to accurately state
the law and further argues the superior court erroneously denied his
requested “timing” instruction.

¶32            At trial, both the State and the defense requested a jury
instruction regarding the “timing” of felony murder. The State requested
this instruction:

         When the underlying felony is so entwined with the homicide
         that it is part of that homicide, it is not appropriate to hold a
         stopwatch on the events or artificially break down the actions
         of the defendant into separate components.

         There is no requirement that the homicide occur while
         committing or while engaged in the unlawful flight from
         pursuing law enforcement, or that the homicide be a part of
         the unlawful flight from pursuing law enforcement, other
         than that the few acts be a part of one continuous transaction.
         Thus the homicide need not have been committed to
         perpetrate the unlawful flight from pursuing law
         enforcement.

         There need be no technical inquiry as to whether there has
         been a completion or abandonment of or desistence from the
         unlawful flight from pursuing law enforcement before the
         homicide itself was completed.

Silva requested this instruction:

         The accused cannot be convicted of murder in the first degree
         unless the death and the unlawful flight were part of one
         continuous transaction. If you find that the crime of unlawful


                                        10
                             STATE v. SILVA
                            Decision of the Court

       flight was completed or terminated prior to an act which
       caused the death of another, then you cannot find the
       defendant guilty of first degree murder.

¶33           During the settling of the final jury instructions, Silva objected
to the omission of his requested instruction. The superior court responded
that the court’s proposed instructions adequately stated the law. When the
State subsequently objected to the omission of its requested “timing”
instruction, the court again stated that the instructions, as written,
adequately addressed the timing concerns, and Silva volunteered that the
State’s offered instruction, “probably much like the instruction [the
defense] offered, probably constitutes a comment on the evidence.” The
State further objected to the superior court’s proposed instructions that
stated the jury could find Silva guilty of felony murder only if he
proximately caused Hill’s death. Overruling the State’s objection, the court
provided the jury the following causation instruction:

       Conduct is the cause of a result when both of the following
       exist:

       One, but for the conduct the result in question would not have
       occurred.

       Two, the relationship between the conduct and the result
       satisfies any additional causal requirements imposed by the
       definition of the offense.

       In order to find the defendant guilty of first degree felony
       murder, you must find that the death was proximately caused
       by the acts of the defendant.

       The proximate cause of the death is the cause which, in
       natural and continuous sequence, produces the death, and
       without which the death would not have occurred.

       Proximate cause does not exist if the chain of natural effects
       and cause either does not exist or is broken by a superseding
       event that was unforeseeable by the defendant and, with the
       benefit of hindsight, may be described as abnormal or
       extraordinary.

       The State must prove beyond a reasonable doubt that a
       superseding intervening event did not cause the death.



                                      11
                              STATE v. SILVA
                             Decision of the Court

       Causal – Causation, multiple actors. The unlawful acts of two
       or more people may combine to cause the death of another. If
       the unlawful act of the – the other person was the sole
       proximate cause of death, you must find the defendant not
       guilty.

¶34           Before closing arguments, however, the superior court invited
the prosecutor to further explain why the causation instruction should be
modified. The prosecutor again argued that the given instruction
improperly limited causation to Silva’s acts, in contravention of the law.
After closing arguments, the court told the jurors to disregard the initial
causation instruction. It then reread the instruction to the jury, in its
entirety, incorporating the following modification: “In order to find the
defendant guilty of first degree felony murder, you must find that the death
was proximately caused by the acts of the defendant or another person.”

¶35            We review a superior court’s decision to grant or deny a
requested jury instruction for an abuse of discretion, State v. Hurley, 197
Ariz. 400, 402, ¶ 9 (App. 2000), but review de novo whether instructions
accurately state the law. State v. Fierro, 220 Ariz. 337, 338, ¶ 4 (App. 2008).
To assess whether instructions properly reflect the law, we review them in
their entirety and will not reverse a jury verdict based on an erroneous
instruction unless the instructions, taken as a whole, could reasonably
mislead a jury. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75 (2000); State v.
Gallegos, 178 Ariz. 1, 10 (1994). If a jury instruction is substantially free from
error, it generally will not prejudice the defendant. Gallegos, 178 Ariz. at 10.

¶36           Read together and as relevant here, A.R.S. §§ 13-1105(A)(2)
(2010) (felony murder) and 28-622.01 (2012) (unlawful flight) provide that a
person commits felony murder, whether acting “alone or with one or more
other persons,” by driving a motor vehicle to “willfully flee[] or attempt[]
to elude a pursuing law enforcement vehicle,” and “in the course of and in
furtherance of th[at] offense or immediate flight from th[at] offense, the
person or another person causes the death of any person.”

¶37            Applying these statutes to the facts in this case, in which the
underlying felony of unlawful flight ended when Silva and Hill exited the
vehicle, the narrow question before the jury was whether Silva or another
person caused Hill’s death during their subsequent immediate flight.
Viewed in their entirety, the superior court’s instructions, which identified
all the elements of felony murder and unlawful flight, and included a
causation instruction that tracked A.R.S. § 13-1105(A)(2), adequately
reflected the law. See State v. Prasertphong, 206 Ariz. 70, 90, ¶ 81 (2003) (“We


                                       12
                              STATE v. SILVA
                             Decision of the Court

have encouraged trial courts to closely follow statutory language when
instructing on felony murder.”), vacated on other grounds by, 541 U.S. 1039
(2004); see also State v. Mott, 187 Ariz. 536, 546 (1997) (explaining a trial court
need not provide a proximate cause instruction when the given instructions
“instruct the jury on the elements of the crime, including causation,” and,
in their entirely, adequately reflect the law).

¶38           Silva’s proposed instruction, on the other hand, stated that
Silva was not culpable for Hill’s death if the underlying felony of unlawful
flight terminated before she was shot, which is in contravention of the
immediate flight provision of A.R.S. § 13-1105(A)(2). Furthermore, the
given instructions did not preclude Silva from arguing that he had
surrendered before Hill sustained her fatal injuries. Indeed, defense
counsel argued that theory extensively to the jury during closing argument.
To the extent Silva also contends that the instructions misstated the law on
proximate causation and informed the jurors that he was legally
responsible for Hill’s death even if her conduct was an intervening cause,
the superior court provided the jury with a superseding cause instruction
that correctly stated Silva was not culpable for felony murder if an
unforeseeable event caused Hill’s death. Therefore, the superior court did
not err by providing the given causation instruction or abuse its discretion
by denying Silva’s special timing instruction.

   V.      Denial of Motion for a Judgment of Acquittal

¶39         Silva contends the superior court erred by denying his motion
for a judgment of acquittal for the counts of felony murder and
miscellaneous theft.

¶40           Following the State’s presentation of evidence, Silva moved
for a judgment of acquittal pursuant to Arizona Rules of Criminal
Procedure 20, which the superior court denied. We review de novo a ruling
on a Rule 20 motion. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “[T]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at ¶ 16
(internal quotation omitted). Sufficient evidence upon which a reasonable
jury can convict may be direct or circumstantial. State v. Borquez, 232 Ariz.
484, 487, ¶ 11 (App. 2013). A judgment of acquittal is appropriate only
when “there is no substantial evidence to warrant a conviction.” Ariz. R.
Crim. P. 20(a).




                                        13
                             STATE v. SILVA
                            Decision of the Court

¶41            As charged in this case, a person commits felony murder
when, “[a]cting either alone or with one or more other persons,” he
commits or attempts to commit unlawful flight from a pursuing law
enforcement vehicle and, “in the course of and in furtherance of the offense
or immediate flight from the offense, the person or another person causes
the death of any person.” A.R.S. § 13-1105. “Whether a death occurred
during ‘immediate flight’ from the underlying offense is [] a fact question.”
State v. Lucero, 204 Ariz. 363, 365, ¶ 13 (App. 2003).

¶42          Silva does not contest that the State presented sufficient
evidence that he, acting with Hill, committed unlawful flight. Rather, he
challenges only the sufficiency of the evidence that Hill was shot during his
immediate flight from the underlying felony and that he caused her death.

¶43            At trial, numerous witnesses testified regarding Silva’s
location and conduct at the time of Hill’s shooting. All the witnesses agreed
that Silva’s surrender to police and the shooting occurred nearly
simultaneously, but some officers testified that at the moment Hill was shot,
Silva had his hands in the air, others testified that he had placed his hands
up and dropped to his knees, one officer testified that Silva was handcuffed,
and another testified that he was prone on the ground. The officer who shot
Hill testified that he saw Silva on his knees with his hands in the air
immediately before the officer discharged his firearm in Hill’s direction,
and Silva testified that he heard shots seconds after he had surrendered to
police. The custodian of records for the Riverside County Sheriff’s
Department testified that the dispatch log for that day showed the shots
were logged sixteen seconds after an officer reported that Silva had placed
his hands in the air.

¶44            Although Silva had stopped running by the time Hill was
shot, the State also presented evidence that he nonetheless remained a
threat to officer safety because suspects sometimes comply with officer
commands as a “ruse” in order to lure officers into a more dangerous
position, and deputies did not know at the time whether Silva was armed.
In light of this testimony, as well as the differing accounts regarding the
degree to which Silva had been subdued at the time of the shooting, there
was some evidence from which a reasonable jury could conclude that Silva
continued to present an imminent risk and his immediate flight did not end
until he no longer posed a threat to officer safety, which, by numerous
accounts, did not occur until after Hill was shot. See State v. Hitchcock, 87
Ariz. 277, 280 (1960) (rejecting the defendant’s claim of insufficient evidence
to support his felony murder conviction, explaining “the events which
transpired immediately preceding the shooting occurred in rapid sequence


                                      14
                            STATE v. SILVA
                           Decision of the Court

and as a part of the chain of events which defendant’s deliberate acts had
set in motion” and it was unclear to what extent the defendant had been
“subdued” at the time of the shooting).

¶45           Furthermore, to the extent Silva contends the State failed to
present evidence that he caused Hill’s death, the record is replete with
uncontroverted evidence that Hill would not have been shot absent Silva
and Hill’s unlawful flight from the California felony stop and immediate
flight therefrom. See State v. Bennett, 213 Ariz. 562, 567, ¶ 23 (2006)
(explaining the causation requirement for felony murder is satisfied when
“the death would not have happened without the [predicate felony
offense]”). Although Silva argues Hill’s attempt to draw her weapon when
faced with advancing police officers was “unforeseeable” and broke the
chain of events for which he is culpable, there was evidence to support the
contrary. The record reflects that Hill repeatedly shot at civilian vehicles
during the police pursuit and, therefore, her subsequent attempt to
brandish the weapon and prevent capture may not reasonably be
characterized as abnormal or extraordinary. For these reasons, the superior
court did not err by denying Silva’s Rule 20 motion with respect to felony
murder.

¶46            Turning to the conviction for theft, Silva argues only that the
State failed to prove that the value of the stolen property seized from the
scene was $25,000 or greater as required to sustain his conviction of a class
two felony under A.R.S. § 13-1802(G). The State concedes that insufficient
evidence supports the conviction.

¶47            At trial, an officer testified that $5,500 was found on the
ground near Hill’s body. The State also presented evidence that various
other stolen items were seized from the Tahoe, including jewelry and
collectible coins, but presented no evidence regarding the value of those
items. During his testimony, Silva claimed that $5,000 of the money
recovered from the scene belonged to him, but he also admitted during his
police interview that Hill had counted at least $10,000 stolen from a home
invasion. Given these facts, and absent any evidence regarding the value
of the jewelry or coins, there was sufficient evidence from which a
reasonable jury could find that Silva knowingly controlled property that he
knew or had reason to know was stolen, but only in an amount greater than
$4,000 and less than $25,000, a class three felony. A.R.S. § 13-1802(A)(5),
(G). Therefore, we modify the judgment to reflect Silva’s conviction for the
necessarily included lesser offense of theft, a class three felony, and remand
to the superior court for resentencing. Ariz. R. Crim. P. 31.17(d).



                                     15
                             STATE v. SILVA
                            Decision of the Court

   VI.      Alleged Juror Coercion

¶48           Silva contends the superior court improperly denied his
motion for new trial and his motion to vacate the judgment, which were
predicated on his claim that the court, through its response to a jury
question, coerced the guilty verdicts.

            a. Denial of Motion for New Trial

¶49            Before excusing the jury to deliberate in the late afternoon on
the tenth day of trial, the superior court instructed the jurors to set their
own deliberation schedule, explaining the jurors were “in charge” of their
schedule, but it was nonetheless subject to court approval. Approximately
forty-five minutes later, the jury submitted its proposed schedule and the
superior court, after clarifying the dates and times, set the schedule for the
jury to resume deliberations at 1:00 p.m. on December 21, permitting the
jurors to “stay late” if necessary, and then, if the jurors were unable to reach
a verdict on December 21, continue deliberations on December 30.

¶50           When the jurors resumed deliberations at 1:25 p.m. on
December 21, the superior court informed them that they could stay only
until 6:00 p.m., and would need to return on December 30 if a verdict was
not reached by that time. At 4:08 p.m., the jury submitted the following
question: “If we find guilt or innocence on four counts, and we are unable
to reach unanimity on three remaining charges, what happens?” The
prosecutor requested that the court “inquire of the jury in more detail”
whether they were “absolutely certain they w[ould] never come to an
agreement on those other counts or whether they, with more deliberation,
could come [to an agreement].” The judge responded, “I don’t take it that
way,” and explained he interpreted the question as a “legal issue,” with the
jurors wanting to know “what happens ultimately” to counts for which no
verdict is reached. Interpreting the question in the same manner as the
prosecutor, defense counsel stated that “Rule 22.4 applies” because the
jurors had effectively advised the court that they had reached an impasse
in deliberations. The judge again stated that he believed the jurors were
simply “trying to find out what happens to the three charges if they can’t
agree on them.” The judge then suggested responding as follows:

         The question being asked is beyond the scope of the role of
         the jury. Please continue to deliberate. Please let the Court
         know if there is anything that would assist you with your
         deliberations.




                                      16
                             STATE v. SILVA
                            Decision of the Court

When directly asked, both the prosecutor and defense counsel stated they
had no objection to that response.

¶51           At 5:54 p.m. that evening, the jury returned its verdicts,
finding Silva guilty on five counts and not guilty on two counts. After
reading the verdicts, the superior court instructed the clerk to poll the
jurors, and each juror expressly affirmed that the verdicts as read were the
true and correct verdicts for all charges.

¶52           Ten days later, Silva filed a motion for new trial, arguing the
superior court committed fundamental error by improperly responding to
the jurors’ question. At the hearing on the motion, the defense argued that
the deliberation schedule, which required the jury to resume deliberations
on “New Year’s Eve”5 if they did not reach a verdict, was coercive. In
addition, the defense argued that the jurors’ question “clear[ly] reflected
that they were deadlocked,” and therefore, Rule 22.4 was triggered,
requiring the court to inquire whether they were indeed at an impasse.
After further argument, the superior court denied the motion for new trial.

¶53            We generally review the denial of a motion for new trial for
an abuse of discretion. State v. West, 238 Ariz. 482, 488, ¶ 12 (App. 2015).
To determine whether the superior court coerced a jury’s verdict, we
consider “the actions of the judge and the comments made to the jury based
on the totality of the circumstances[,]” and evaluate whether “the
independent judgment of the jury was displaced.” State v. Huerstel, 206
Ariz. 93, 97, ¶ 5 (2003). “What conduct amounts to coercion is particularly
dependent upon the facts of each case.” State v. Roberts, 131 Ariz. 513, 515
(1982).

¶54            In evaluating whether the superior court’s actions or
statements were coercive, we consider whether the jury had indicated it
was deadlocked or had stated that additional deliberations would not be
helpful, the court’s knowledge of a numerical split among the jurors, the
identification of a holdout juror, and the presence or absence of a cautionary
instruction. See State v. McCrimmon, 187 Ariz. 169, 172-73 (1996); State v.
Lautzenheiser, 180 Ariz. 7, 9-10 (1994); State v. McCutcheon (McCutcheon II),
162 Ariz. 54, 60 (1989); State v. McCutcheon (McCutcheon I), 150 Ariz. 317, 320
(1986); Roberts, 131 Ariz. at 514-16; State v. Sabala, 189 Ariz. 416, 420 (App.
1997). Here, the jury’s question to the court did not: (1) clearly state that the
jurors were deadlocked or otherwise suggest that additional deliberations


5    The jury was actually scheduled to resume deliberations on
December 30, 2015, if necessary.


                                       17
                             STATE v. SILVA
                            Decision of the Court

would be futile, (2) provide a numerical split among the jurors, or (3)
identify a holdout juror. Likewise, the superior court’s response to the
jurors did not inquire regarding a numerical split or question the identity
of any possible holdouts, and offered furthered assistance if desired.

¶55            Citing State v. Andriano, 215 Ariz. 497 (2007), Silva argues the
superior court erred by failing to instruct the jurors that a deadlocked jury
was acceptable and further admonishing them not to surrender their firmly
held beliefs. Similar to the jury question posed in this case, the jurors in
Andriano asked the trial court: “If we are unable to reach an unanimous
verdict, what is the procedure that will be followed?” Id. at 508, ¶ 54. The
trial court responded with an impasse instruction. Id. In affirming
Andriano’s conviction and sentence, the supreme court held that the jury’s
question was an “affirmative indication” that it was deadlocked and the
trial court did not err by giving the impasse instruction. Id. at 509, ¶ 56.

¶56            Applying Andriano to this case, the superior court would have
acted within its considerable discretion had it provided the jury an impasse
instruction. Contrary to Silva’s argument, however, Andriano does not
stand for the proposition that a court errs by failing to provide an impasse
instruction when the jury submits a question indicating a possible impasse.
Indeed, our supreme court has held that simply asking jurors to continue
to deliberate, as the superior court did in this case, is not coercive because
it “neither asks the jury to reach a verdict nor suggests that any juror should
change his or her views.” State v. Cruz, 218 Ariz. 149, 167, ¶ 115 (2008). In
Cruz, the jury submitted a question that read: “If one person’s decision
remains unchanged against the other 11 jurors is this a hung jury? If so
what happens next?” Id. at 166-67, ¶ 108. Reasoning that the question “was
hypothetical,” the trial court responded: “[a]t this time I would ask you to
continue your deliberations to attempt to resolve any differences.” Id. The
supreme court concluded that the court’s response was not coercive,
whether the jurors were posing a hypothetical question or had actually
become deadlocked. Id. at 167, ¶ 115.

¶57           Finally, to the extent Silva contends the jury’s deliberation
schedule was itself coercive, we note that the jurors determined their own
schedule and there is no basis on this record to conclude that the jurors felt
pressured to reach their verdicts within a limited time frame. Therefore,
considering the totality of the circumstances, the superior court’s response
to the jury question was not coercive and the court did not abuse its
discretion by denying Silva’s motion for new trial.




                                      18
                              STATE v. SILVA
                             Decision of the Court

          b. Denial of Motion to Vacate Judgment

¶58            After sentencing, Silva filed a motion to vacate the judgment
pursuant to Rule 24.2 on grounds of newly discovered evidence.
Specifically, Silva presented the affidavit of a juror who averred that she
held a different position than the other jurors during deliberations and the
superior court’s response to the jury question made her believe she had to
vote guilty. At the hearing on the motion, Silva asked the superior court to
hold an evidentiary hearing to allow the parties to question each of the
twelve jurors regarding the impact of the court’s response to the jury
question. After taking the matter under advisement, the superior court
denied Silva’s request for an evidentiary hearing and the motion to vacate,
concluding Silva had not presented newly discovered material facts and the
juror’s affidavit lacked credibility because each juror had individually
affirmed the unanimous verdicts on all counts.

¶59             We review the denial of a motion to vacate a judgment for an
abuse of discretion. State v. Parker, 231 Ariz. 391, 408, ¶ 78 (2013). It is well-
settled that a jury verdict cannot be impeached by a juror who agreed to the
verdict in open court. State v. Kiper, 181 Ariz. 62, 68-69 (App. 1994). A
narrow exception to this general rule permits a court to consider a juror’s
testimony or affidavit, however, when the verdict is challenged based on
certain juror misconduct. See Ariz. R. Crim. P. 24.1(d). As enumerated in
Arizona Rule of Criminal Procedure 24.1(c)(3), the nature of qualifying
juror misconduct under the exception is limited to: (1) receiving evidence
not properly admitted during trial, (2) deciding the verdict by lot, (3)
perjuring oneself or willfully failing to respond fully to a direct question
posed during the voir dire examination, (4) receiving a bribe or pledging
one’s vote in any other way, (5) becoming intoxicated during the course of
the deliberations, or (6) conversing before the verdict with any interested
party about the outcome of the case.

¶60            Although Silva does not dispute that each of the jurors
affirmed the accuracy of the verdicts in open court, he asserts the foreman
engaged in misconduct that authorized the superior court to consider the
juror’s affidavit for impeachment purposes. Specifically, Silva contends the
foreman failed to properly phrase the juror’s question to the court. First,
we note that the juror did not make such an avowal in her affidavit. She
stated that she would have asked the superior court “what would happen
if [she] could not reach a verdict on certain charges based on the evidence
because [her] position was different from the other jurors,” but did not
claim that she had asked the foreman to ask that specific question and he
had refused or otherwise rephrased it. More importantly, however, this


                                       19
                            STATE v. SILVA
                           Decision of the Court

alleged “misconduct” is not among the enumerated exceptions to the
general rule prohibiting the use of juror affidavits to impeach verdicts read
and affirmed in open court. Therefore, the superior court did not abuse its
discretion by denying Silva’s motion to vacate the judgment.

                              CONCLUSION

¶61           For the foregoing reasons, we modify the judgment to reflect
that Silva’s conviction for theft is a class three felony and remand to the
superior court for resentencing as to that count. We affirm Silva’s other
convictions and sentences.




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




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