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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS D IVISION O NE

S TATE OF ARIZONA , Appellee ,

v.

M ANUEL OSMAR GUERRERO

- MONTANO , Appellant

. No. 1 CA-CR 20-0003

A ppeal from the Superior Court in Maricopa County No. CR2019-115134-001 The Honorable Marvin L. Davis , Judge

AFFIRMED

COUNSEL Arizona Attorney General’s Office , Phoenix By Brian Coffman Counsel for Appellee

M aricopa County Public Defender’s Office , Phoenix By Aaron J. Moskowitz C ounsel for Appellant

M EMORANDUM DECISION Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Jennifer M. Perkins and Judge Maria E lena Cruz joined. FILED 9-2-2021STATE v. GUERRERO

- MONTANO Decision of the Court

2 B A I L E Y , Judge:
¶1 De fendant Manuel Osmar Gue rrero
- Montano appeals his conviction for unlawful flight

. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY ¶2 On appeal, we view the evidence in the light most favorable to sustaining the conviction and resolve all reasonable inferences against Guerrero

- Montano. State v. Karr , 221 Ariz. 319, 320, ¶ 2 (App. 2008). In April 2019, a Phoenix police officer wa s patrolling in a fully marked SUV when he heard loud exhaust revving and observed a motorcycle traveling at a “pretty high rate of speed .” Without activating his lights and sirens, the officer followed the driver , later identified as Guerrero

- Montano, for over a mile

. ¶3 When the officer initiate d a traffic stop by turning on his overhead lights , Guerrero

- Mo ntano did not stop but drove between two lanes of traffic to the intersection. With his overhead lights still activated, the officer drove directly behind the motorcycle and activated his siren. ¶4 Guerrero

- Montano look ed back toward the officer , revved the motorcycle , and accel erated away. The officer then shut off his lights and sirens and requested support from other officers

. Guerrero

- Montano was eventually stopped and arrested

. ¶5 The State charged Guerrero

- Montano with unlawful flight from a law enforce ment vehicle in violation of A.R.S. § 28

- 622.01, a c lass 5 felony. Following a four

- day trial, the jury found Guerrero

- Montano guilty , and the court sentenced him to two years of supervised probation. ¶6 We have jurisdiction over Guerr ero
- Montano’s timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. § § 12-120.21, 13-4031 and -4033.

DISCUSSION ¶7 Guerrero

- Montano argues the prosecutor’s statements to the jury that “any refusal to stop on command is unlawf ul flight” were error

. See Matter of Martinez , 248 Ariz. 458, 470, ¶ 47 (2020) ( “When reviewing the conduct of prosecutors in the context of ‘prosecutorial misconduct’ claims, courts should differentiate between ‘error,’ which may not necessarily imply a concurrent ethical rules violation, and ‘misconduct,’ which may suggest an ethical violation.” ). To prove prosecutorial error, a defendantSTATE v. GUERRERO

- MONTANO Decision of the Court

3 must show that the error “ so infected the trial with unfairness as to make the resulting conviction a denial of due process.” See State v. Johnson , 247 Ariz. 166, 200, ¶ 133 (2019) (quoting State v. Acuna Valenzuela , 245 Ariz. 197, 216, ¶ 66 (2018) ). We will reverse a convictiono n this ground only if there is prosecutorial error and a reasonable likelihood the error could have affected the verdict. See State v. Goudeau , 239 Ariz. 421, 465, ¶ 193 (2016). Because Guerrero

- Montano objected to the prosecutor’s statements, we review for harmless error. See State v. Henderson , 210 Ariz. 561, 567, ¶ 18 (2005). After the defendant establishe s error occurred, State v. Diaz , 223 Ariz. 358, 36 0 , ¶ 11 (2010), the State bears the burden “to prove bey ond a reasonable doubt that the error did not contribute to or affect the verdict or sentence ,” Henderson , 210 Ariz. at 567, ¶ 18. ¶8 “Prosecutors are given wide latitude in presenting closing argument to the jury.” Goudeau , 239 Ariz. at 466, ¶ 196 (quotatio ns omitted). Although “[e] ach side is permitted to argue its version of the evidence to the jury

. . . [t]he state may not misstate the law to the jury.” State v. Serna , 163 Ariz. 260, 266 (1990). We evaluate the context in which the prosecutor’s statements were made as well as the entire record and totality of circumstances. Goudeau , 239 Ariz. at 466, ¶ 196. ¶9 The court instructed the jury that t o prove the crime of unlawful flight from a pursuing l aw enforcement vehicle , the State had to show : “(1) the defendant, who was driving a motor vehicle, willfully fled from or attempted to elude a pursuing official law enforcement vehicle; and (2) the law enforcement vehicle was appropriately marked showing it to be an official law enforcement vehicle.” Rev. Ariz. Jury Instr. (“RAJI”) NCSTI Crim. 28.622.01 (unlawful flight) (4th ed. 2016) ; see also A.R.S. § 28 -622.01. Section28-622.01 applies to marked law enforcement vehicle s , “if the driver of the vehicle while in motion sounds an audible signal by . . . siren . . . as reasonably necessary and if the vehicle is equipped with at least one lighted lamp displaying a red or red and blue light.” A.R.S. § 28 -624(C). ¶10 At trial, Guerrero

- Montano d id not dis pute that the officer was driving a fully marked law enforcement vehicle

. The record demonstrate s the officer drove up behind Guerrero

- Mont ano and activated his overhead lights . T he officer testified that when Guerrero

- Montano refused to stop, t he officer activated his siren and drove directly behind Guerrero

- Montano. After looking over his shoulder, Guerrero

- Montano sped away from the officer

. ¶11 We have held “any refusal to stop on command of an officer who is in a police car violates the felony flight statute because of the potentialSTATE v. GUERRERO

- MONTANO Decision of the Court

4 for personal danger inherent in vehicular pursuit, even if that pursuit does not attain excessive speeds or involve reckless driving.” State v. Fogarty , 178 Ariz. 170, 171 (App. 1993). Here, t he jury could reasonably conclude that Guerrero

- Montano violate d § 28

- 622.01 by refus ing to stop when the officer pursued him first with activated lights , and then also w ith sirens

. See id

. ¶12 T he prosecutor’s statements in this context do not misstate the law. During closing argument , the prosecutor distinguish ed between a “pursuit” under Phoenix Police Department policy and the State’s burden under the statute. Guerrero

- Montano then argued : (1) there was no felony

flight because the officer was not in pursuit per department policy , and (2) fleeing u nder A.R.S. § 28-622.01 require s the State to prove more than “just not stopping .” In rebuttal, the prosecutor addressed the elements of the statute. Throughout closing argument , the prosecutor’s statements of law were consistent with precedent

. See Fogarty , 178 Ariz. at 171 ( “Here , the defendant simply refused to stop on command and neither took any evasive action nor led the police on a high -speed chase.”). ¶13 Because the prosecutor did not misstate the law , Guerrero

Montano has not shown error. Moreover, g iven the overwhelming evidence of guilt and the accurate jury instructions, we conclude Guerrero

Montano has failed to meet his burden. See State v. Ramos , 235 Ariz. 230, 236, ¶ 18 (App. 2014); Goudeau , 239 Ariz. at 466, ¶ 199.

CO NCLUSION ¶14 W e affirm.