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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ARTHUR MONTOYA, JR., Appellant.

                             No. 1 CA-CR 14-0415
                               FILED 11-24-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-155003-001
            The Honorable Brian Kaiser, Judge Pro Tem, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                           STATE v. MONTOYA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.


G E M M I L L, Judge:

¶1            Arthur Montoya Jr. appeals his convictions and sentences
imposed for two counts of aggravated driving under the influence (“DUI”).
Montoya contends the trial court erred in instructing the jury regarding a
presumption of receipt of notice and in denying his motion for a directed
verdict. For the following reasons, we affirm.

                              BACKGROUND

¶2            We view the evidence in the light most favorable to
upholding the jury verdicts, and we resolve all reasonable inferences in
favor of the prevailing party. State v. Mitchell, 204 Ariz. 216, 217, ¶ 3 (App.
2003).

¶3            On December 22, 2011, Arizona Department of Public Safety
Officer B.H. served Montoya with an affidavit informing him that his
Arizona driver’s license would be suspended for one year, effective January
6, 2012 — fifteen days from the date served. The affidavit also stated that
the suspension would be effective until all of the reinstatement
requirements were met. Officer B.H. read each section of the affidavit to
Montoya aloud, verbatim, and gave him a copy of the affidavit.

¶4            On January 9, 2012, Montoya went to a Motor Vehicle
Division (“MVD”) office and applied for an Arizona Identification Card. In
his application, Montoya noted that his license had been suspended. The
MVD could not find record of his suspension in its system, however, and
issued him an Arizona driver’s license instead of an identification card. The
MVD did not receive notice of Montoya’s suspension until January 11 and
did not thereafter send Montoya written notice of his suspension.

¶5           In July 2012, Montoya was stopped for suspicion of DUI. An
officer ran Montoya’s driver’s license and found that it was suspended.
When asked by officers, Montoya told them he believed his license was not
suspended or revoked. Montoya was charged with two counts of


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                            STATE v. MONTOYA
                            Decision of the Court

aggravated DUI — both counts “aggravated” because his license was
suspended.

¶6             After several days of trial, the jury returned guilty verdicts on
Count 1, aggravated DUI, and Count 2, aggravated DUI with an alcohol
level of .08 or higher. The trial court sentenced Montoya to eight years for
each count, to run concurrently, with credit for time served. Montoya
timely appeals, and we have jurisdiction pursuant to Article 6, Section 9 of
the Arizona Constitution and Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

                               DISCUSSION

¶7            Montoya asserts two arguments. First, he contends that the
trial court abused its discretion when it instructed the jury — over his
objection — on the presumption of receipt of notice. Second, Montoya
claims that the trial court erred in denying his motion for directed verdict
of acquittal because there was no evidence that he knew or should have
known that his license was suspended.

I.     Jury Instruction

¶8             We review the trial court’s decision to give a jury instruction
for abuse of discretion, but we review de novo whether the instruction
correctly states the law. State v. Tarr, 235 Ariz. 288, 291-92, ¶ 9 (App. 2014).
A jury instruction “need only be ‘substantially free from error.’” State v.
Zaragoza, 221 Ariz. 49, 53, ¶ 15 (2009) (quoting State v. Cox, 217 Ariz. 353,
356, ¶ 15 (2007)). If we determine an error occurred in an instruction to
which a defendant objected, we then review whether the error was
harmless. See State v. Solis, 236 Ariz. 285, 287, ¶ 12 (App. 2014). For an error
to be harmless, the State must show “beyond a reasonable doubt that the
error did not contribute to or affect the verdict.” State v. Valverde, 220 Ariz.
582, 585, ¶ 11 (2009).

¶9            To prove the alleged aggravated DUI offenses, the State was
required to prove that Montoya knew or should have known in July 2012
that his license was suspended. See State v. Williams, 144 Ariz. 487, 489
(1985) (interpreting former A.R.S. § 28-692.02). The trial court instructed
the jury regarding a presumption of knowledge of suspension, as follows:




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                           STATE v. MONTOYA
                           Decision of the Court

               PRESUMPTION OF RECEIPT OF NOTICE

       In order to prove that the defendant knew or should have
       known that his license or privilege to drive was suspended,
       the State must prove one of the following:

       1. The defendant received or was served with personal notice
       of the suspension; or

       2. The defendant was mailed notice of the suspension by the
       Arizona Department of Motor Vehicles.

       The State is not required to prove actual knowledge of the
       suspension. Notice of a suspension gives rise to a
       presumption that the defendant has knowledge of the
       suspension. That presumption can be rebutted by other
       evidence.

       You are free to accept or reject this presumption as triers of
       fact.   You must determine whether the facts and
       circumstances shown by the evidence in this case warrant any
       presumption that the law permits you to make. Even with the
       presumption, the State has the burden of proving each and
       every element of the offense beyond a reasonable doubt
       before you can find the defendant guilty.

¶10            Montoya argues that this instruction was misleading and an
incorrect statement of law. The instruction provides two prongs by which
the State might have proved Montoya knew or should have known his
license was suspended. Both prongs, separately, are accurate expressions
of the law. Considering the first prong, as this court recognized in State v.
Ekmanis, 180 Ariz. 429, 431-32 (App. 1994), personal service of notice of
suspension by an officer — such as that given to Montoya by Officer B.H.
— is sufficient to provide notice. See A.R.S. § 28-1321(B), (G). Regarding
the second prong, service mailed from the MVD is considered sufficient to
provide notice of suspension under A.R.S. § 28-3318. See also State v. Cifelli,
214 Ariz. 524, 527, ¶ 12 (App. 2007).

¶11          Applied to mailing of notice of suspension of a license, the
second half of the instruction correctly explains the presumption and
appropriately instructs the jury on the burden of proof. See Cifelli, 214 Ariz.
at 527, ¶ 13. As written, however, the instruction also applies the



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                           STATE v. MONTOYA
                           Decision of the Court

presumption to personal service. We are not aware of any case or statute
that applies the presumption of knowledge to personal service and the State
has not cited any such case or statute in its answering brief on appeal. But
we need not decide whether that presumption is properly applied to
personal service, as opposed to service by mailing, because even assuming
that aspect of the instruction was legally incorrect, any such error was
harmless.

¶12           Montoya contends that applying the presumption to personal
service “injected unnecessary confusion into the jury instructions.” We
disagree. See State v. Sucharew, 205 Ariz. 16, 26, ¶ 33 (App. 2003) (“We will
not reverse a conviction, based on a claim of error with respect to jury
instructions, ‘unless we can reasonably find that the instructions, when
taken as a whole, would mislead the jurors.’”) (quoting State v. Strayhand,
184 Ariz. 571, 587 (App. 1995)).

¶13            The record in this case shows that the jury instructions were
quite clear when taken as a whole. The instruction on the presumption of
knowledge properly stated that the presumption could be rebutted by other
evidence, the jury was free to accept or reject the presumption, and the State
had the burden of proving each element beyond a reasonable doubt. The
instruction is not misleading, unfair, or confusing. Additionally, the State
did not rely on the presumption in its closing arguments and did not even
mention the presumption, focusing instead on the proper burden of proof
and the facts supporting personal notification of the suspension. The record
also shows that the jury did not ask any questions about the presumption
instruction during its deliberations.

¶14           The State acknowledged that the MVD did not mail notice of
suspension to Montoya, so the jury would have no reason to apply the
second prong of the instruction, regarding mailing. As the trial court
explained in the standard instructions to the jury:

       You must consider all these instructions. Do not pick out one
       instruction, or part of one, and ignore the others. As you
       determine the facts, however, you may find that some
       instructions no longer apply. You must then consider the
       instructions that do apply, together with the facts as you have
       determined them.

(Emphasis added).




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                          STATE v. MONTOYA
                          Decision of the Court

We will generally assume that a jury follows its instructions. See State v.
Manuel, 229 Ariz. 1, 6, ¶ 24 (2011).

¶15          Furthermore, because Montoya acknowledged that his
license was suspended when he applied for an identification card at the
MVD, the presumption instruction was not necessary, but neither was it
harmful.

¶16          On this record and for all of these reasons, we conclude that
the presumption instruction, even if legally incorrect, was harmless beyond
a reasonable doubt and did not mislead the jury.

II.   Motion for Directed Verdict

¶17           We review de novo a trial court’s denial of a motion for
judgment of acquittal. State v. Harm, 236 Ariz. 402, 406, ¶ 11 (2015). Under
Arizona Rule of Criminal Procedure 20(a) (“Rule 20”) the trial court “shall
enter a judgment of acquittal” after the close of evidence if “there is no
substantial evidence to warrant a conviction.” Substantial evidence “is
such proof that reasonable persons could accept as adequate and sufficient
to support a conclusion of defendant’s guilt beyond a reasonable doubt.”
Id. (quoting State v. West, 226 Ariz. 559, 562, ¶ 16 (2011)) (internal quotes
omitted).

¶18            Montoya argues that the trial court erred in denying his Rule
20 motion. Montoya acknowledges on appeal that he received personal
notice of his one-year suspension. Nevertheless, he argues there was no
evidence that he knew or should have known of the suspension because the
MVD issued him a driver’s license after the date of suspension according to
the affidavit, and the MVD did not thereafter inform him of the suspension
after it received the affidavit and entered the suspension into its records.
However, the record demonstrates that Montoya was given personal notice
of his one year suspension more than two weeks before he went to the
MVD.

¶19            Although Montoya contends that his knowledge based on
personal service was negated by the MVD’s issuance of a license to him
after the date the affidavit said his license would be suspended, reasonable
jurors could conclude that such personal service was adequate to show that
Montoya knew or should have known his license was suspended for a one-
year period. Based on Officer B.H.’s testimony that he orally advised
Montoya on December 22, 2011, that his license would be suspended in 15



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                          STATE v. MONTOYA
                          Decision of the Court

days and provided Montoya with written confirmation at that time, the trial
court did not abuse its discretion by denying Montoya’s Rule 20 motion.

                             CONCLUSION

¶20          Based on the foregoing, we affirm Montoya’s convictions and
sentences.




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