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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

STATE OF ARIZONA

, Appellee

,

v.

SANDRA MARIA VALENZUELA

, Appellant

.

No. 1 CA

- C R 14

- 0531

Appeal from the Superior Court in Maricopa County

No. C R2013

- 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 AppellantSTATE v. VALENZUELA

Decision of the Court

2 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 I njury), 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 Ar iz. 285, 286, ¶ 6, 339 P.3d 668, 669 ( App. 2014) (“We review a court’s decision to give a jury

instru ction for abuse of discretion.”)

. W e 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 reason able 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. R unning 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
consci ousness 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 r eturned to his patrol car , activated his lights andSTATE v. VALENZUELA

Decision of the Court

3 siren, and pursued Vale nzuela. Valenzuela drove away from the scene for approximately two blocks until she came up to vehicles stopped at a traffic light , which blocked he r path

. Valenzuela reversed to turn into a gas station parking lot she had passed

, allow ing the officer ti me to “catch up” to her.
The officer ordered her out of the car and asked her, “ W hat the hell w ere you th inking?” Valenzuela responded she “ had places to go.”

¶5 Contrary to Valenzuela’s argument on appeal, the for e going facts supported the State’s requested flight instruction. As the superior court explained in denying her objection to the instruction: “There is

evidence that t he officer pursued [Valenzuela] ” and “also evidence that she

would have continued to dri ve 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 co ncealing evidence. ” 1

She further argues the sentence called “ attention to the fact th at 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 th is 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, Valenzuel a’s comment to the officer that

she “ had places to go” provided sufficient evidentiary support for the

sentence. Third

, the sentence can not 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 ] co mment is impermissible only if the language used was manifestly inten ded or was of such a character that the jury would naturally and necessarily take it to be a com ment on the failure to testify. ” (citation s omitted) (internal quotation marks omitted ) )

. Finally, our supreme court has instructed we are to presume jurors fo llow the court’s instructions. See

1 Valenzuela 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).STATE v. VALENZUELA

Decision of the Court

4 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 w ay.”

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

and sentence.