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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MANUEL OSMAR GUERRERO-MONTANO, Appellant. 

No. 1 CA-CR 20-0003 

Appeal 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 

Maricopa County Public Defender’s Office, Phoenix

By Aaron J. Moskowitz

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in 

which Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.

FILED 9-2-2021
STATE v. GUERRERO-MONTANO

Decision of the Court

2 

B A I L E Y, Judge:

¶1 Defendant Manuel Osmar Guerrero-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 was 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 initiated a traffic stop by turning on his 

overhead lights, Guerrero-Montano 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 looked back toward the officer, revved the 

motorcycle, and accelerated 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 enforcement vehicle in violation of A.R.S. § 28-622.01, a class 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 Guerrero-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 unlawful 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 defendant 
STATE 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 conviction on 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 establishes error occurred, State v. Diaz, 223 

Ariz. 358, 360, ¶ 11 (2010), the State bears the burden “to prove beyond 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 (quotations 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 to prove the crime of

unlawful flight from a pursuing law 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. 

Section 28-622.01 applies to marked law enforcement vehicles, “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 did not dispute that the officer 

was driving a fully marked law enforcement vehicle. The record 

demonstrates the officer drove up behind Guerrero-Montano and activated 

his overhead lights. The officer testified that when Guerrero-Montano 

refused to stop, the 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 potential 
STATE 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, the jury could reasonably conclude that 

Guerrero-Montano violated § 28-622.01 by refusing to stop when the officer

pursued him first with activated lights, and then also with sirens. See id.

¶12 The prosecutor’s statements in this context do not misstate the

law. During closing argument, the prosecutor distinguished between a 

“pursuit” under Phoenix Police Department policy and the State’s burden 

under the statute. Guerrero-Montano then argued: (1) there was no felonyflight because the officer was not in pursuit per department policy, and (2)

fleeing under A.R.S. § 28-622.01 requires 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, GuerreroMontano has not shown error. Moreover, given the overwhelming 

evidence of guilt and the accurate jury instructions, we conclude GuerreroMontano has failed to meet his burden. See State v. Ramos, 235 Ariz. 230, 236, 

¶ 18 (App. 2014); Goudeau, 239 Ariz. at 466, ¶ 199. 

CONCLUSION

¶14 We affirm.