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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               SANDRA MARIA VALENZUELA, Appellant.

                             No. 1 CA-CR 14-0531
                               FILED 07-21-2015

           Appeal from the Superior Court in Maricopa County
                        No. CR2013-450404-001
           The Honorable Richard L. Nothwehr, Commissioner

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                          STATE v. VALENZUELA
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Patricia A. Orozco and Judge Maurice Portley joined.


N O R R I S, Judge:

¶1             Sandra Valenzuela appeals her conviction and sentence for
Endangerment (Physical Injury), a class 1 misdemeanor, arguing the
superior court should not have instructed the jury on flight because the
State failed to present sufficient evidence warranting the instruction. We
disagree, and accordingly, the superior court did not abuse its discretion by
instructing the jury on flight. See State v. Solis, 236 Ariz. 285, 286, ¶ 6, 339
P.3d 668, 669 (App. 2014) (“We review a court’s decision to give a jury
instruction for abuse of discretion.”). We therefore affirm Valenzuela’s
conviction and sentence.

¶2            Over Valenzuela’s objection, the superior 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, hiding, or
              concealing evidence, together with all the other
              evidence in the case. You may also consider the
              defendant’s reasons for running away, hiding,
              or concealing evidence. Running away, hiding,
              or concealing evidence after a crime has been
              committed does not by itself prove guilt.

¶3            “A flight instruction should only be given if the State presents
evidence of flight after a crime from which jurors can infer a defendant’s
consciousness of guilt.” Solis, 236 Ariz. at 286, ¶ 7, 339 P.3d at 669. The
court must determine whether the evidence “supports a reasonable
inference that the flight or attempted flight was open, such as the result of
an immediate pursuit.” Id. at 287, ¶ 7, 339 P.3d at 670.

¶4           Here, the State presented evidence Valenzuela did not stop—
or even slow down—after nearly hitting a police officer with her car. After
the near miss, the officer returned to his patrol car, activated his lights and


                                       2
                          STATE v. VALENZUELA
                            Decision of the Court
siren, and pursued Valenzuela. Valenzuela drove away from the scene for
approximately two blocks until she came up to vehicles stopped at a traffic
light, which blocked her path. Valenzuela reversed to turn into a gas station
parking lot she had passed, allowing the officer time to “catch up” to her.
The officer ordered her out of the car and asked her, “What the hell were
you thinking?” Valenzuela responded she “had places to go.”

¶5            Contrary to Valenzuela’s argument on appeal, the foregoing
facts supported the State’s requested flight instruction. As the superior
court explained in denying her objection to the instruction: “There is
evidence that the officer pursued [Valenzuela]” and “also evidence that she
would have continued to drive but for the fact that the vehicles were
stopped.”

¶6             Valenzuela also argues that even if the State presented
sufficient evidence to support a flight instruction, that evidence did not
support including the sentence that stated, “You may also consider the
defendant’s reasons for running away, hiding, or concealing evidence.”1
She further argues the sentence called “attention to the fact that Appellant
did not testify to explain her reasons for failing to stop.” We disagree with
both arguments.

¶7            First, because Valenzuela failed to object to the instruction on
this ground she has waived this argument on appeal, absent fundamental
error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20, 115 P.3d 601, 607
(2005). Second, even if not waived, Valenzuela’s comment to the officer that
she “had places to go” provided sufficient evidentiary support for the
sentence. Third, the sentence cannot reasonably be understood as calling
attention to her decision not to testify. Cf. State v. Schaaf, 169 Ariz. 323, 333,
819 P.2d 909, 919 (1991) (“It is constitutionally impermissible for a
prosecutor or a trial judge to comment on a defendant’s failure to testify . .
. [, however,] [a] comment is impermissible only if the language used was
manifestly intended or was of such a character that the jury would naturally
and necessarily take it to be a comment on the failure to testify.” (citations
omitted) (internal quotation marks omitted)). Finally, our supreme court
has instructed we are to presume jurors follow the court’s instructions. See

              1Valenzuela   also argues the court should not have included
the sentence in the instruction because the Revised Arizona Jury
Instructions (“RAJI”) Standard Criminal 9 Use Note states it should be
given only upon the defendant’s request. The superior court, however, is
not required to follow the RAJI. See State v. Logan, 200 Ariz. 564, 566, ¶ 12,
30 P.3d 631, 633 (2001); State v. Larin, 233 Ariz. 202, 212, ¶ 37, 310 P.3d 990,
1000 (App. 2013).


                                        3
                         STATE v. VALENZUELA
                           Decision of the Court
State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). Thus, we
must assume the jury followed the court’s instruction “not [to] let
[Valenzuela’s] choice [not to testify] affect your deliberations in any way.”

¶8            For the foregoing reasons, we affirm Valenzuela’s conviction
and sentence.




                                    :RT




                                     4
