State v. Fiihr, 2 CA-CR 2008-0070.
| Court | Court of Appeals of Arizona |
| Writing for the Court | Pelander |
| Citation | 221 Ariz. 135,211 P.3d 13 |
| Parties | The STATE of Arizona, Appellee, v. William John FIIHR, Appellant. |
| Docket Number | No. 2 CA-CR 2008-0070.,2 CA-CR 2008-0070. |
| Decision Date | 22 December 2008 |
v.
William John FIIHR, Appellant.
[211 P.3d 14]
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.
PELANDER, 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.
¶ 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.
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.
¶ 7 Fiihr was charged with and convicted of unlawful flight from a pursuing law enforcement vehicle pursuant to § 28-622.01. That statute provides:
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...
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...failure to sua sponte instruct the jury on a lesser-included offense may constitute fundamental, prejudicial error." State v. Fiihr, 221 Ariz. 135, ¶ 9, 211 P.3d 13, 15 (App. 2008). But this does not relieve Sunderland of his burden, on appeal, to demonstrate that, under the circumstances i......
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...testimony sirens unnecessary, supported juvenile court's implicit finding siren not reasonably necessary); see also State v. Fiihr, 221 Ariz. 135, ¶ 11, 211 P.3d 13, 16 (App. 2008) (noting use of siren may not be necessary depending on circumstances).¶10 We have not considered, however, whe......
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