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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JEOFREY MUTINDA KAVU, Appellant.

                              No. 1 CA-CR 18-0122
                                FILED 4-16-2019


            Appeal from the Superior Court in Maricopa County
                         No. CR2015-125712-001
                 The Honorable Douglas Gerlach, Judge

                                   AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Debus Kazan & Westerhausen LTD, Phoenix
By Tracey Westerhausen
Co-Counsel for Appellant

DM Cantor, Phoenix
By Michael Alarid, III
Co-Counsel for Appellant
                           STATE v. KAVU
                          Decision of the Court



                     MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.


B E E N E, Judge:

¶1          Jeofrey Kavu appeals his convictions and sentences for
negligent homicide and endangerment. For the following reasons, we
affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            After nightfall on a summer evening, R.F. and L.V. embarked
on a lengthy walk, pushing a shopping cart along a bicycle lane. At some
point, R.F. heard screeching tires and turned to see a fast-moving vehicle
swerving in their direction. Although R.F. instinctively tried to pull L.V.
out of danger, the car struck her, propelling her several feet into a ditch
adjacent to the road.

¶3             As the car drove away, R.F. searched in the dark for L.V.,
calling her name. He found her lying face-down in dirt, choking on her
own blood. While yelling for help, R.F. lifted L.V.’s body and leaned her
against a traffic sign.

¶4          A nearby resident heard R.F.’s pleas and called for emergency
assistance.  By the time paramedics arrived, however, L.V. was
unresponsive and pronounced dead.

¶5           Responding police officers assessed the debris strewn about
the scene and then surveyed the surrounding area for the gray vehicle that
had been involved in the collision. While searching an apartment complex
parking lot in the vicinity, Officer Ryan McDowell located a gray Lexus
with “extensive front-end damage,” two deployed air bags, two flat tires,
and a partially missing side mirror. The engine was “still warm.”
Suspecting he had found the collision vehicle, Officer McDowell secured



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


                                    2
                            STATE v. KAVU
                           Decision of the Court

the area and ran a license-plate check on the Lexus, which was registered
to Kavu’s father.

¶6           Meanwhile, Officer Geoffrey Ballentine searched the exterior
of the apartment complex and found a bar receipt issued earlier in the
evening that bore Kavu’s name. After printing a motor vehicle department
photograph of Kavu, the officer knocked on an apartment door near where
he had found the bar receipt. No one answered, so the officer waited
outside.

¶7             At some point, a woman exited a neighboring apartment door
and Officer Ballentine approached her with the photograph, which she
immediately recognized as Kavu. When the woman stated that Kavu was
in her apartment, the officer asked her to summon him outside. She
complied and Kavu quickly emerged and identified himself. Observing
that Kavu had watery eyes and smelled of alcohol, Officer Ballentine placed
him under arrest. In a search incident to that arrest, the officer located a
credit card inside Kavu’s pocket that corresponded to the bar receipt he had
found.

¶8           Once Kavu was in custody and searched, an officer
transported him to a police station where he was advised of his Miranda2
rights and asked about the collision. Denying any involvement, Kavu
claimed that he had been home the entire evening and had not permitted
anyone to use his car.

¶9            During an ensuing police investigation, officers determined
that the debris recovered from the scene of the collision corresponded to the
damage and missing parts from Kavu’s Lexus. An accident reconstruction
found the Lexus had been traveling at more than seventy miles per hour
when it veered into the bike lane and struck L.V. and the cart,
notwithstanding the posted speed limit of forty miles per hour.
Furthermore, investigating officers obtained a second bar receipt from the
evening in question that likewise bore Kavu’s name.

¶10         As presented to a jury,3 the State charged Kavu with one
count of manslaughter (Count 1), one count of leaving the scene of a fatal-


2     Miranda v. Arizona, 384 U.S. 436 (1966).

3     In the original indictment, the State charged Kavu with a second
count of manslaughter, alleging he had caused the death of L.V.’s unborn



                                     3
                              STATE v. KAVU
                             Decision of the Court

injury accident (Count 2), and one count of endangerment (Count 3). After
a nine-day trial, the jury convicted Kavu of endangerment and the lesser-
included offense of negligent homicide (Count 1) but acquitted him of
leaving the scene of a fatal-injury accident. The superior court sentenced
Kavu to an aggregate term of seven years’ imprisonment and he timely
appealed. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

                                 DISCUSSION

    I.      Denial of Batson4 Challenge.

¶11          Arguing the superior court erred by denying his Batson
challenge, Kavu contends that the prosecutor’s exercise and waiver of
peremptory strikes were racially motivated.

¶12           During jury selection, the superior court asked the
prospective jurors whether they felt able to judge another person’s criminal
culpability. In response, Juror No. 18 stated that she would find it difficult
to judge someone and did not “want to do it.” When the court explained
that the jurors would be given certain facts and evidence to evaluate, Juror
No. 18 remained reluctant, twice commenting, “It’s like playing God.”
Juror Nos. 96 and 105 expressed similar reticence over a decision that could
“put somebody in prison.”

¶13           When defense counsel subsequently conducted voir dire of the
jurors, he revisited the issue and asked Juror Nos. 18 and 96 to further
explain their disinclination to serve. Restating her position, Juror No. 96
stated that she viewed the “prison system” as “inhumane” and did not feel
that she could decide criminal culpability without considering the
corresponding sentence that would be imposed. Juror No. 18 expressed a
more specific objection, stating she could evaluate the evidence of
culpability, but was not willing to decide the punishment.

¶14           Without objection, Juror Nos. 96 and 105 were dismissed for
cause. When the prosecutor moved to dismiss Juror No. 18 for cause,
however, defense counsel objected, asserting the juror had been
rehabilitated and could fairly and objectively evaluate the evidence.
Although the prosecutor countered that Juror No. 18 had simply agreed

child. On the State’s motion, however, the superior court dismissed that
count without prejudice.

4        Batson v. Kentucky, 476 U.S. 79 (1986).


                                        4
                             STATE v. KAVU
                            Decision of the Court

with defense counsel’s “carefully worded question,” the superior court
concurred with defense counsel and denied the State’s request.

¶15            After the prosecutor exercised his peremptory challenges,
electing to strike only five jurors, defense counsel raised a Batson challenge,
arguing that the State “direct[ly]” struck a minority juror, Juror No. 18, and
“indirect[ly]” struck another minority potential juror, Juror No. 50, who
was next in line to be empaneled if the State had used its remaining
peremptory challenge. The superior court summarily dismissed defense
counsel’s challenge to Juror No. 50, explaining a party is not required to
exercise each of his allotted strikes.

¶16            With respect to Juror No. 18, however, the court invited the
prosecutor to respond. Noting he had previously moved to strike Juror No.
18 for cause, the prosecutor stated that he exercised a peremptory strike to
remove Juror No. 18 because she had acknowledged that she was unable to
judge another person’s culpability. When defense counsel countered that
other prospective jurors had likewise expressed reluctance to sit in
judgment, the prosecutor explained that those jurors were numerically
unlikely to be empaneled. Agreeing with the State and noting that Juror
No. 18 was the only prospective juror to “invok[e] God,” the court denied
Kavu’s Batson challenge to Juror No. 18.

¶17            Using peremptory strikes to exclude potential jurors solely
based on race violates the Equal Protection Clause of the Fourteenth
Amendment. State v. Newell, 212 Ariz. 389, 400, ¶ 51 (2006) (citing Batson,
476 U.S. at 89). We will uphold the denial of a Batson challenge absent clear
error. Newell, 212 Ariz. at 400, ¶ 52. Because the superior court is in the best
position to assess a prosecutor’s credibility, which is a primary factor in
evaluating the State’s motive for exercising a peremptory strike, we extend
great deference to the court’s ruling. Id. at 401, ¶ 54.

¶18            “To successfully challenge a peremptory strike, a party must
set forth a prima facie case of purposeful discrimination by showing that
the totality of the relevant facts gives rise to an inference of discriminatory
purpose.” State v. Paleo, 200 Ariz. 42, 43, ¶ 6 (2001) (internal quotation
omitted). “The burden of production then shifts to the opponent who must
explain adequately the racial exclusion.” Id. (internal quotation omitted).
“The court then evaluates the facts to determine whether a party engaged
in purposeful discrimination.” Id. at 44, ¶ 6. “Throughout the process, the
burden of persuasion remains on the party alleging discrimination.” Id.




                                       5
                            STATE v. KAVU
                           Decision of the Court

¶19           Applying this framework to the State’s peremptory strike of
Juror No. 18, the superior court implicitly found that Kavu had met his
initial burden and set forth a prima facie case of racial discrimination. See
State v. Bustamante, 229 Ariz. 256, 261, ¶ 16 (App. 2012) (“By asking the
prosecutor for a race-neutral explanation for the strike, the judge implicitly
found that defendant had met his initial burden to make a prima facie case
of intentional discrimination.”). The prosecutor, in turn, explained that he
believed Juror No. 18 should have been struck for cause due to her manifest
reluctance to judge another person, thereby providing a race-neutral basis
for exercising the peremptory strike. When defense counsel countered that
other prospective jurors had expressed a similar reticence to serve, the
prosecutor differentiated those jurors by explaining they fell outside the
strikable range. Equally important, though not expressly relied upon by
the prosecutor, Juror Nos. 96 and 105 had already been struck for cause.
Because Kavu failed to present any evidence that the prosecutor’s
peremptory strike of Juror No. 18 was the result of purposeful
discrimination, and there is no basis on this record for concluding the
prosecutor’s race-neutral reason for the strike was pretext, the superior
court did not clearly err by concluding the State’s peremptory strike of Juror
No. 18 did not violate Batson.

¶20            Turning to Juror No. 50, Kavu argues the prosecutor’s waiver
of a peremptory strike, which left a minority juror unseated, was predicated
on racial discrimination. “Peremptory challenges are a matter of discretion
for each party and may be used, or not, for any non-discriminatory reason.”
Paleo, 200 Ariz. at 45, ¶ 11. Because “[t]he law does not presume
wrongdoing without action of some kind or omission of a legally required
act,” a waiver of a peremptory strike, alone, is “insufficient to create an
inference of discriminatory purpose.” Id. at 44, ¶ 8. Nonetheless, waiver
may be “a relevant circumstance in establishing a prima facie case of
discrimination because those of a mind to discriminate could manipulate
the rules to prevent the seating of minority jurors.” Id. at ¶ 10 (internal
quotation omitted). To establish a prima facie case, the party challenging
the waiver of an allotted peremptory strike must put forward evidence that
racial discrimination prompted the waiver. Id. at 45, ¶ 11.

¶21           Here, defense counsel simply cited the prosecutor’s waiver of
a peremptory strike and his exercise of a peremptory strike against Juror
No. 18 to establish a prima facie case of racial discrimination. Because no
evidence suggests that Juror No. 18 was struck for a discriminatory
purpose, however, defense counsel failed to make the requisite showing of
waiver “accompanied by something more.” Id. at 44, ¶ 10. On this record,



                                      6
                             STATE v. KAVU
                            Decision of the Court

the superior court did not clearly err by summarily concluding the State’s
waiver of a peremptory strike did not violate Batson.

   II.    Admission of Expert Testimony.

¶22           Kavu argues the superior court improperly allowed a
surrogate medical examiner (Dr. Philip Keen) to testify regarding the
victim’s autopsy in lieu of the medical examiner who performed the
autopsy but was no longer employed by the medical examiner’s office at
the time of trial (Dr. Michael Ferenc). Specifically, Kavu contends he was
denied his constitutional right to confront a witness against him when the
contents of Dr. Ferenc’s autopsy report were introduced through Dr. Keen’s
expert testimony.

¶23           Several months before trial, the prosecutor notified the
superior court that Dr. Ferenc had moved out of state and was no longer
responding to State inquiries. Accordingly, the prosecutor hired Dr. Keen
to replace Dr. Ferenc at trial and provided him with the autopsy report as
well as other relevant medical records.

¶24           In response, Kavu moved to preclude Dr. Keen’s testimony,
asserting Dr. Keen would simply “act[] as a conduit” to introduce Dr.
Ferenc’s findings and opinions in violation of the Confrontation Clause. At
a hearing on the motion, Dr. Keen testified that he had reviewed Dr.
Ferenc’s reports and photographs but formulated his own independent
conclusions regarding the victim’s cause of death. Based on this
representation, the superior court denied Kavu’s motion and held that Dr.
Keen could testify regarding his independent opinions.

¶25            “The Confrontation Clause bars admission of out of court
testimonial evidence unless the defense has had an opportunity to cross-
examine the declarant.” State v. Parker, 231 Ariz. 391, 402, ¶ 38 (2013) (citing
Crawford v. Washington, 541 U.S. 36, 38 (2004)). “Testimonial evidence is ex
parte in-court testimony or its functional equivalent—that is, material such
as affidavits, custodial examinations, prior testimony that the defendant
was unable to cross-examine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially.” Id. at 402-03, ¶ 38
(quoting Crawford, 541 U.S. at 51). We review de novo evidentiary rulings
that implicate the Confrontation Clause. State v. Ellison, 213 Ariz. 116, 129,
¶ 42 (2006).

¶26          The supreme court has repeatedly and uniformly held that “a
testifying medical examiner may, consistent with the Confrontation Clause,
rely on information in autopsy reports prepared by others as long as he


                                       7
                             STATE v. KAVU
                            Decision of the Court

forms his own conclusions.” State v. Dixon, 226 Ariz. 545, 553, ¶ 36 (2011);
see also State v. Joseph, 230 Ariz. 296, 298, ¶ 8 (2012) (“[A] testifying medical
examiner may offer an opinion based on an autopsy performed by a non-
testifying expert without violating the Confrontation Clause.”); State v.
Smith, 215 Ariz. 221, 228, ¶ 23 (2007) (“Expert testimony that discusses
reports and opinions of another is admissible under this rule if the expert
reasonably relied on these matters in reaching his own conclusion.”). A
testifying expert may not, however, act as a “conduit for another non-
testifying expert’s opinion.” State v. Lundstrom, 161 Ariz. 141, 148 (1989).

¶27            In this case, the autopsy report prepared by Dr. Ferenc was
not admitted at trial. Instead, Dr. Keen testified on behalf of the medical
examiner’s office and stated his opinions regarding the circumstances and
cause of L.V. ’s death. Although Dr. Keen reviewed photographs, medical
records, and the autopsy report in preparation for trial, and referred to the
autopsy report while presenting his testimony, he used this information to
reach his own conclusions regarding the nature of L.V.’s injuries (blunt
force trauma) and the cause of her death (motor vehicle). After Dr. Keen
presented his opinions, Kavu had the opportunity to confront and cross-
examine him. See State v. Rogovich, 188 Ariz. 38, 42 (1997) (explaining “the
defendant’s confrontation right extends to the testifying expert witness, not
to those who do not testify but whose findings or research merely form the
basis for the witness’s testimony”). Thus, Dr. Keen was not a mere conduit
for the opinions of the prior medical examiner.

¶28           Nonetheless, relying on Melendez-Diaz v. Massachusetts, 557
U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), Kavu
argues the admission of surrogate testimony violates the Confrontation
Clause. Kavu’s reliance on Melendez-Diaz and Bullcoming is misplaced,
however, because those cases involved the admission of testimonial
documents. Melendez-Diaz, 557 U.S. at 311; Bullcoming, 564 U.S. at 662-65.
Here, even assuming the autopsy report was testimonial, it was not
admitted into evidence and Dr. Keen testified regarding his independent
opinions, not the conclusions set forth in the report. See Joseph, 230 Ariz. at
298-99, ¶ 10; State v. Snelling, 225 Ariz. 182, 187, ¶ 21 (2010). Therefore, no
Confrontation Clause violation occurred, and the superior court did not
commit error by allowing Dr. Keen to testify.5


5     In his reply brief, Kavu argues that the superior court erroneously
permitted Dr. Keen to serve as a surrogate without ensuring that the State
had complied with the statutes governing out-of-state witnesses, A.R.S.



                                       8
                               STATE v. KAVU
                              Decision of the Court

   III.        Denial of Motions for Mistrial.

¶29           Kavu contends the superior court improperly denied his
motions for mistrial. He asserts the court should have declared a mistrial
after: (1) an officer referred to a matter that had been precluded by a
previous court order; and (2) a State expert provided irrelevant, prejudicial
testimony.

¶30            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, the superior court “is in the best position
to determine whether [improper] evidence will actually affect the outcome
of the trial.” Id. When improper evidence has been admitted, 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. Id.
Because a “declaration of 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).

          A.      Pregnancy Testimony.

¶31           On the first day of trial, defense counsel moved to preclude
any reference to L.V.’s possible pregnancy (Dr. Ferenc and Dr. Keen
reached different conclusions regarding whether changes to L.V.’s
reproductive organs indicated an early stage of pregnancy). The prosecutor
agreed that the evidence should be excluded and that R.F. would be
admonished accordingly. Concurring with the parties, the superior court
found that evidence of L.V.’s possible pregnancy was inadmissible. As a
precaution, the court told the parties it would provide a curative instructive
in the event such testimony “slip[ped] out.”

¶32          During R.F.’s testimony, no mention was made of L.V.’s
possible pregnancy. When the officer who first responded to the collision
scene subsequently testified, however, the prosecutor asked her whether
R.F. had reported where he and L.V. were walking, and the officer


§ 13-4091 to -4096 (2010). Because Kavu failed to raise this claim in his
opening brief, we do not address it. See State v. Guytan, 192 Ariz. 514, 520,
¶ 15 (App. 1998) (holding issues raised for the first time in a reply brief are
waived).


                                         9
                             STATE v. KAVU
                            Decision of the Court

responded, “he indicated . . . that they were . . . traveling north . . . because
the female victim was pregnant.” Defense counsel immediately objected
and the prosecutor asked to approach the bench. At the bench, the
prosecutor assured the court that he had no knowledge that the officer “was
going to say that.”

¶33           Immediately after the bench conference, the superior court
instructed the jury as follows:

       Members of the jury, you just heard a statement attributed to
       a witness about pregnancy. There is no evidence that there
       was any pregnancy and you will hear no evidence that there
       was any pregnancy. You are instructed to disregard . . . that
       statement, not to let it factor into any decision that you may
       make in this case.

¶34          Notwithstanding the curative instruction, defense counsel
moved for a mistrial based on the officer’s errant pregnancy testimony.
Finding the curative instruction adequately addressed the issue and “fully
protected” Kavu, the superior court denied the motion.

¶35            Applying the first prong of the mistrial analysis, the officer’s
unsolicited testimony clearly presented evidence to the jury that had been
precluded by court order. Turning to the second prong, however, the
superior court’s curative instruction properly limited the possibility that the
improper evidence would influence the jury’s verdicts. That is, rather than
simply striking the officer’s testimony as improper, the court informed the
jurors that no evidence supported a claim that L.V. was pregnant and
therefore they should not consider it. Thus, to the extent the jurors
considered the stricken testimony, in contravention of the court’s
instruction, see State v. Kuhs, 223 Ariz. 376, 387 (2010) (“We presume that the
jurors follow instructions.”), it was with the understanding that R.F.’s
statement to the officer was wholly unsubstantiated. Moreover, the jury’s
acquittal on the count of leaving the scene of a fatal-injury accident
demonstrates that the jurors carefully considered the evidence and belies
any claim that the jurors may have convicted Kavu simply because the
pregnancy testimony made L.V. appear more sympathetic. See State v.
Anderson, 199 Ariz. 187, 193, ¶ 33 (App. 2000) (reasoning that the jury’s
acquittal on some charges “undermined” defendant’s argument of




                                       10
                             STATE v. KAVU
                            Decision of the Court

prejudice). For these reasons, we cannot say the superior court abused its
discretion by denying Kavu’s motion for mistrial.6

       B.     Retrograde Analysis Testimony.

¶36          Before trial, Kavu moved in limine to preclude the State from
offering evidence regarding retrograde analysis.7 At a hearing on the
motion, defense counsel argued that the length of time that had elapsed
between the collision and Kavu’s subsequent blood draws rendered
retrograde analysis unreliable in this case. Consistent with defense
counsel’s argument, the State conceded that the toxicologist had never
previously performed retrograde analysis in a case in which so much time
had elapsed. After hearing from the parties, however, the superior court
denied the motion in limine, finding Kavu’s challenges to the retrograde
analysis went to the weight of the evidence, not its admissibility.

¶37           At trial, the toxicologist testified that Kavu’s blood was drawn
twice following his arrest. The first sample was untestable and the second
sample, which was drawn approximately eight hours after the collision,
was tested twice, with an average blood alcohol concentration (“BAC”) of
.113. Explaining that alcohol is metabolized and eliminated through the
liver at a constant rate, but individual rates vary, the expert testified that
the average elimination rate is .015 per hour.

¶38            Once the prosecutor completed his direct examination of the
toxicologist, the superior court invited defense counsel to raise any issues


6       Kavu asserts, for the first time on appeal, that the prosecutor
engaged in misconduct by eliciting the inadmissible pregnancy testimony.
Because he failed to object on this basis in the superior court, we review this
claim only for fundamental, prejudicial error. See State v. Henderson, 210
Ariz. 561, 567, ¶ 20 (2005). Prosecutorial misconduct is “intentional
conduct” that the “prosecutor knows to be improper and prejudicial, and
which he pursues for any improper purpose.” Pool v. Superior Court (State),
139 Ariz. 98, 108-09 (1984). Here, the officer’s statement was unsolicited,
and the prosecutor immediately avowed that he had no foreknowledge that
the officer would provide the testimony. On this record, Kavu has failed to
demonstrate either misconduct or prejudice.

7      Retrograde analysis, or retroactive extrapolation, “is a method by
which a person’s [blood alcohol concentration] at an earlier point in time is
calculated based on his [blood alcohol concentration] from a later blood
test.” State ex rel. Montgomery v. Miller, 234 Ariz. 289, 295, ¶ 5 (App. 2014).


                                      11
                             STATE v. KAVU
                            Decision of the Court

and defense counsel responded that he would handle any concerns on
cross-examination. Before commencing cross-examination the following
day, however, defense counsel moved to strike the toxicologist’s testimony,
arguing Kavu’s BAC at the time of the second blood draw was so remote
from the collision that it was irrelevant to the charges. The prosecutor
countered that Kavu’s BAC at the time of his arrest, combined with the bar
receipts, tended to show that Kavu had a high BAC at the time of the crash
and therefore acted recklessly by choosing to drive. Although finding the
State had presented sufficient evidence to support an inference that Kavu
had consumed alcohol before the collision, the superior court granted
defense counsel’s motion because the State had failed to present any
evidence that retrograde analysis could reliably identify a BAC so remote
in time. Concerned that the BAC percentage evidence could nonetheless
improperly influence the jury, defense counsel moved for a mistrial. The
court denied the motion but instructed the jurors that they could not
consider any evidence regarding blood alcohol percentages.

¶39            During closing argument, the prosecutor argued the jury
could reasonably infer that Kavu had been intoxicated at the time of the
collision based on his alcohol purchases that evening, his odor of alcohol at
the time of his arrest, and the presence of alcohol in his blood after the crash.
The prosecutor never referenced the toxicologist’s percentage testimony. In
response, defense counsel argued the toxicologist’s test results were
irrelevant because the second blood draw was nearly eight hours after the
collision and it was possible that Kavu drank alcohol in the interim.

¶40            Although the superior court initially denied Kavu’s motion in
limine, it ultimately found the State had failed to show that retrograde
analysis could reliably be applied to blood drawn nearly eight hours after
the relevant time. Striking the toxicologist’s percentage testimony
accordingly, the court admonished the jurors to disregard it, and consistent
with well-settled caselaw, it also instructed the jurors that they could
consider the presence of alcohol in Kavu’s blood at the time of his arrest.
See Desmond v. Superior Court (State), 161 Ariz. 522, 527-28 (1989) (“The
proper procedure to be followed when a party offers [a] BAC result into
evidence without any relation-back testimony is for the court to admit the
portion of the test result that indicates the presence of alcohol in the blood—
but not the percentage . . . .”).

¶41          Contending this curative instruction provided an insufficient
remedy, Kavu argues the delay between the toxicologist’s testimony and
the court’s admonishment allowed the jurors to perform their own
retrograde analysis and conclude that Kavu’s BAC at the time of the


                                       12
                           STATE v. KAVU
                          Decision of the Court

collision was “almost four times the legal limit.” Even assuming the jurors
performed such a calculation, the court expressly instructed them that such
percentages could “not factor into any decision that [they] make.” We
presume a jury follows a court’s instructions, and Kavu has not presented
any evidence to overcome that presumption. See Newell, 212 Ariz. at 403,
¶ 68. For these reasons, the superior court did not abuse its discretion by
denying Kavu’s motion for mistrial.

                              CONCLUSION

¶42          For the foregoing reasons, we affirm.




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




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