                                                                   FILED BY CLERK
                                                                      DEC 22 2008
                           IN THE COURT OF APPEALS
                               STATE OF ARIZONA                        COURT OF APPEALS
                                                                         DIVISION TWO
                                 DIVISION TWO


THE STATE OF ARIZONA,                        )
                                             )      2 CA-CR 2008-0070
                                Appellee,    )      DEPARTMENT A
                                             )
                   v.                        )      OPINION
                                             )
WILLIAM JOHN FIIHR,                          )
                                             )
                                Appellant.   )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20072277

                        Honorable Richard D. Nichols, Judge

                                      AFFIRMED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Amy M. Thorson                                       Tucson
                                                              Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
 By Robb P. Holmes                                                            Tucson
                                                              Attorneys for Appellant


P E L A N D E R, Chief Judge.
¶1             After a jury trial held in his absence, William John Fiihr was convicted of

fleeing from a law enforcement vehicle in violation of A.R.S. § 28-622.01.1 He was

sentenced to a partially mitigated prison term of 4.5 years. On appeal, Fiihr contends the trial

court erred by failing sua sponte to instruct the jury on what he claims is a lesser-included

offense—“[f]ailure to stop” under A.R.S. § 28-1595(A). Because he failed to object to the

instructions given below or to request a lesser-included-offense instruction, we review this

claim for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20,

115 P.3d 601, 607 (2005); see also State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627

(1991).

¶2             We hold that misdemeanor failure to stop is not a lesser-included offense of

felony flight from a law enforcement vehicle. Because we find no error, fundamental or

otherwise, we affirm.

                                         Background

¶3             “We view the facts in the light most favorable to sustaining the jury’s verdict

and resolve all reasonable inferences against [Fiihr].” State v. Lopez, 209 Ariz. 58, ¶ 2, 97

P.3d 883, 884 (App. 2004). While responding to a “suspicious activity” call, a Pima County

Sheriff’s deputy observed a vehicle, driven by Fiihr, that matched the reported description.




       1
       The state also charged Fiihr with resisting arrest and possession of drug
paraphernalia. At trial, the court granted a directed verdict in his favor on the resisting arrest
charge. See Ariz. R. Crim. P. 20. The jury acquitted him of possession of drug
paraphernalia.

                                                2
The deputy, driving “a fully marked patrol unit,” followed the vehicle with his emergency

lights and siren activated.

¶4            Initially, the patrol car was seven or eight car lengths behind Fiihr’s vehicle.

As the deputy closed the distance to about six car lengths, Fiihr “made a sharp right-hand

turn” into a residential neighborhood. Driving up to fifty-five miles per hour in a twenty-five

mile-per-hour zone, Fiihr then failed to stop for a stop sign as the deputy continued to follow

him with his lights and siren still activated. At that point the only other vehicles on the road

were heading in the opposite direction and yielded to the patrol car.

¶5            After the deputy, using his car’s public address system, told Fiihr to stop his

vehicle, Fiihr pulled into a convenience store parking lot. As the deputy was handcuffing

him, Fiihr said, “I’m sorry I ran, I’m sorry,” and later admitted he had seen the police

vehicle’s lights behind him. The entire pursuit lasted less than a minute and covered about

“three quarters of a mile to a mile.”

¶6            At trial, Fiihr argued he had not intended to elude or flee from the police.

Rather, relying on a portion of his tape-recorded statement given to another deputy, Fiihr

argued that he had not realized the deputy involved in the pursuit was directing him to stop

until he was near the convenience store and that he had not seen the lights behind him until

he turned into the residential neighborhood.

                                          Discussion

¶7            Fiihr was charged with and convicted of unlawful flight from a pursuing law

enforcement vehicle pursuant to § 28-622.01. That statute provides:


                                               3
                      A driver of a motor vehicle who wilfully flees or attempts
              to elude a pursuing official law enforcement vehicle that is
              being operated in the manner described in [A.R.S.] § 28-624,
              subsection C is guilty of a class 5 felony. The law enforcement
              vehicle shall be appropriately marked to show that it is an
              official law enforcement vehicle.

The manner of operation prescribed in § 28-624(C) entails the law enforcement vehicle

“sound[ing] an audible signal by bell, siren or exhaust whistle as reasonably necessary.” 2

¶8            The trial court properly instructed the jury on the unlawful flight charge. Fiihr

does not argue otherwise. On appeal, however, Fiihr for the first time argues the trial court

also should have instructed the jury on the “lesser-included offense” of failure to stop

pursuant to A.R.S. § 28-1595(A), which states:

                      The operator of a motor vehicle who knowingly fails or
              refuses to bring the operator’s motor vehicle to a stop after
              being given a visual or audible signal or instruction by a peace
              officer or duly authorized agent or a traffic enforcement agency
              is guilty of a class 2 misdemeanor.3




       2
        Section 28-624(C) also requires “an authorized emergency vehicle” to be “equipped
with at least one lighted lamp displaying a red or red and blue light or lens visible under
normal atmospheric conditions from a distance of five hundred feet to the front of the
vehicle.” Police vehicles, however, are excepted from that requirement and “need not be
equipped with or display [emergency lights] visible from in front of the vehicle.” § 28-
624(C). The contrary statement in State v. Nelson, 146 Ariz. 246, 249, 705 P.2d 486, 489
(App. 1985), that “§ 28-622.01 requires proof that . . . a pursuing official law enforcement
vehicle . . . was being operated with both lights and siren activated” was “pure dictum” and
overlooked the exception in § 28-624(C) for police vehicles vis-à-vis the emergency lights
requirement. In re Joel R., 200 Ariz. 512, ¶ 5, 29 P.3d 287, 289 (App. 2001).
       3
        Section 28-1595(D), A.R.S., provides that “[a] peace officer . . . may give the signal
or instruction required by subsection A of this section by hand, emergency light, voice,
whistle or siren.”

                                              4
The state responds that failure to stop differs from felony flight because § 28-622.01 “is

restricted to situations when the officer is in pursuit in a law enforcement vehicle,” whereas

“failure to stop can be committed when a person fails to stop for any visual or audible signal

or instruction given by a peace officer,” regardless of whether the officer is “on foot or in a

vehicle.” We agree.

¶9            A lesser-included offense “must be composed solely of some but not all of the

elements of the greater crime so that it is impossible to have committed the crime charged

without having committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251, 660 P.2d

849, 852 (1983); see also State v. Wall, 212 Ariz. 1, ¶ 14, 126 P.3d 148, 150 (2006). In

addition, the offenses must be such “that the lesser cannot be committed without always

satisfying the corresponding elements of the greater.” In re Victoria K., 198 Ariz. 527, ¶ 17,

11 P.3d 1066, 1070 (App. 2000). “‘The test for whether an offense is “lesser-included” is

whether it is, by its very nature, always a constituent part of the greater offense, or whether

the charging document describes the lesser offense even though it does not always make up

a constituent part of the greater offense.’” 4 State v. Robles, 213 Ariz. 268, ¶ 5, 141 P.3d 748,

750-51 (App. 2006), quoting State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94,

97 (App. 1998); see also State v. Gooch, 139 Ariz. 365, 366-67, 678 P.2d 946, 947-48

(1984). Under some circumstances, a trial court’s failure to sua sponte instruct the jury on




       4
      Fiihr does not argue the indictment described a failure to stop offense under § 28-
1595(A). Therefore, we do not address the “charging document” test in analyzing his claim.

                                               5
a lesser-included offense may constitute fundamental, prejudicial error.          See State v.

Valenzuela, 194 Ariz. 404, ¶ 16, 984 P.2d 12, 16 (1999).

¶10           A motorist can violate § 28-1595(A) by knowingly failing to stop “after being

given a visual or audible signal or instruction by a peace officer” who is not driving a

vehicle. Failure to stop does not require that two motor vehicles are involved or that the law

enforcement officer be “in a police car.” State v. Fogarty, 178 Ariz. 170, 173, 871 P.2d 717,

720 (App. 1983) (discussing former § 28-1075, now § 28-1595(A)). A violation of § 28-

622.01, in contrast, does require two vehicles because it hinges on a driver “wilfully flee[ing]

or attempt[ing] to elude a pursuing official law enforcement vehicle.” And the offense of

failure to stop includes as an element that the officer give “a visual or audible signal or

instruction” to stop, § 28-1595(A), but that element is not necessarily required for unlawful

flight under § 28-622.01.

¶11           In addition, § 28-622.01 requires “a pursuing official law enforcement vehicle

that [was] being operated in the manner described in § 28-624, subsection (C).” But under

that latter statute, depending on the circumstance, use of a siren or other audible signal may

not be necessary when pursuing a fleeing motor vehicle. See In re Joel R., 200 Ariz. 512,

¶ 8, 29 P.3d at 289 (upholding finding of delinquency for unlawful flight where siren not

sounded because unnecessary under circumstances). And, as noted in footnote two of this

decision, § 28-624(C) excepts police vehicles from the requirement of having or displaying

a colored “light or lens visible from in front of the vehicle.” Thus, the prescriptions in § 28-




                                               6
624(C) do not equate to the “visual or audible signal or instruction” required for failure to

stop under § 28-1595(A).

¶12           In sum, failure to stop is not a lesser-included offense of felony flight because

a person can violate § 28-1595(A)—by failing to stop as signaled or instructed by an on-foot

police officer—without always satisfying the corresponding elements of the greater offense

found in § 28-622.01. See In re Victoria K., 198 Ariz. 527, ¶ 17, 11 P.3d at 1070. Thus, no

error occurred, fundamental or otherwise, by the trial court’s failure to sua sponte instruct the

jury on failure to stop. See Henderson, 210 Ariz. 561, ¶ 23, 115 P.3d at 608 (defendant must

first prove error in order to obtain relief under fundamental error review).

                                          Disposition

¶13           Fiihr’s conviction and sentence are affirmed.




                                                ____________________________________
                                                JOHN PELANDER, Chief Judge

CONCURRING:




____________________________________
JOSEPH W. HOWARD, Presiding Judge




____________________________________
J. WILLIAM BRAMMER, JR., Judge




                                               7
