State v. Mariscal, 2 CA-CR 2012-0478

CourtCourt of Appeals of Arizona
Docket NumberNo. 2 CA-CR 2012-0478,2 CA-CR 2012-0478
Decision Date18 April 2014




See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20114254001

The Honorable Howard Fell, Judge Pro Tempore



Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Amy Pignatella Cain, Assistant Attorney General, Tucson

Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender

By Katherine A. Estavillo, Assistant Public Defender, Tucson

Counsel for Appellant


Judge Miller authored the decision of the Court, in which Judge Brammer and Judge Johnson concurred. 1

MILLER, Judge:

¶1 Alberto Mariscal was convicted after a jury trial of unlawful flight from a pursuing law enforcement vehicle. On appeal, he argues the trial court erred when it denied his motion for judgment of acquittal, instructed the jury on unlawful flight, and denied his motion for mistrial. For the following reasons, we vacate the criminal restitution order but otherwise affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustain the jury's verdicts and to resolve all inferences against Mariscal. See State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 914 (2005). In November 2011, a police officer in a marked vehicle conducted a records check on a sedan and discovered it was uninsured. The officer turned on his flashing lights and pulled the sedan over in a parking lot. The driver, Mariscal, handed the officer his driver's license. When the officer went back to his car to run a records check on the license, Mariscal sped out of the parking lot, eventually reaching speeds the police officer estimated at seventy to ninety miles per hour in a thirty-five mile-per-hour zone. The officer and another officer who had started to assist followed Mariscal out of the parking lot, but turned off their flashing lights after observing himrun two red lights. Officers later arrested Mariscal at a residence identified from the facts of the traffic stop. He was charged with unlawful flight, convicted, and sentenced to a presumptive prison term of five years.

Unlawful Flight
Rule 20 Motion

¶3 Mariscal contends the trial court erred in denying his motion for judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., because the state did not prove the officers had activated their lights and sirens, or that Mariscal willfully fled. Mariscal argues that activation of lights and sirens is an essential element of the crime of unlawful flight. Alternatively, he contends that even if emergency signal activation is not an element, there was insufficient evidence presented that Mariscal willfully fled a pursuing officer.

¶4 We review de novo a trial court's denial of a Rule 20 motion. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). A Rule 20 motion should be granted if there is "no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20. Substantial evidence is that which "'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" West, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191, quoting State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990).

¶5 Mariscal argues A.R.S. §§ 28-622.012 and 28-624(C)3 required the state to prove the officer used his lights and sirens tochase Mariscal after he left the traffic stop without permission. He acknowledges this court rejected a similar argument in State v. Martinez, 230 Ariz. 382, 284 P.3d 893 (App. 2012). In Martinez, an officer made a traffic stop in his marked patrol car, using his overhead lights to signal the driver to pull over. Id. ¶ 2. The driver sped away before the investigation could be completed. Id. The officer pursued the truck "for a few moments," but stopped because the driver drove erratically and the officer had sufficient identifying information to effect an arrest at a later time without engaging in a dangerous pursuit. Id. Martinez argued there was insufficient evidence of the pursuit because there was no specific testimony the officer had activated his overhead lights after the driver sped away. Id. ¶ 5.

¶6 This court held that, on its face, § 28-624(C) did not require the activation of emergency lights to prove the crime of unlawful flight because police vehicles are not required to display their emergency lights under the subsection. Id. ¶ 6. This court concluded that, although use of emergency lights "may provide circumstantial evidence that a defendant was 'willfully' fleeing from a law enforcement vehicle, activation of emergency lights is not an essential element of the crime of unlawful flight." Id. ¶ 7. Equallyimportant, Martinez held the essential elements of unlawful flight are: "(1) the defendant, who was driving a motor vehicle, willfully fled 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." Id. ¶ 8.

¶7 Mariscal contends Martinez was wrongly decided because it rendered the unlawful flight statute's reference to § 28-624(C) meaningless. He argues the statutes are clear on their face, requiring visible lights and an audible signal as reasonably necessary.4

¶8 With respect to the lighting requirement, Mariscal does not explain why a plain reading of § 28-624(C) would disregard the stated exception to that requirement for police vehicles. Rather, he contends the exception "is inapplicable to the essential elements of unlawful flight because common sense mandates that a driver of a motor vehicle must be on notice that a law enforcement vehicle is pursuing him or her, rather than simply following behind in traffic." The plain language of § 28-624(C) and § 28-622.01 does not make this distinction. Rather, Mariscal's concern about notice is addressed in the first element of § 28-622.01, which requires that the defendant must willfully flee.

¶9 Mariscal also argues use of a siren "as reasonably necessary" is an essential element of unlawful flight. Despite its holding there were only two essential elements of unlawful flight, the Martinez court noted in a footnote that it did not "reach the issue of whether unlawful flight requires proof that an officer used sirens 'as reasonably necessary.'" Martinez, 230 Ariz. 382, n.3, 284 P.3d at 384 n.3, quoting A.R.S. § 28-622.01. This is a difference without a distinction because we previously held use of a siren is not an essential element of unlawful flight. See In re Joel R., 200 Ariz. 512, ¶¶ 5-8, 29 P.3d 287, 288-89 (App. 2001) (finding use of siren only required when reasonably necessary and concluding record, including deputy's unchallenged 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, whether the state bears the burden of proving use of a siren was not "reasonably necessary." A.R.S. § 28-624(C). Mariscal contends the use of lights and sirens is "[t]he most obvious way for an officer to alert a motorist to pull over," although he concedes in his reply brief that a police officer owes a duty to use his sirens not to the fleeing driver, but to other drivers on the roadway. See Herderick v. State, 23 Ariz. App. 111, 114-15, 530 P.2d 1144, 1146-48 (1975).

¶11 Mariscal's no-siren argument also overlooks undisputed facts found by the jury: he already had acceded to a lawful stop of his vehicle by a uniformed officer using over-head, flashing lights to permit an on-going law enforcement investigation. To the extent Mariscal implicitly contends his decision to speed away from the scene before the officer released him somehow re-set the clock to a time before he was pulled over, he provides no authority for that argument. The argument also ignores the fundamental purpose of the unlawful flight statute, which is to ensure "that motorists stop on command so that, for example, the police can issue a citation, issue directions, or conduct an investigation." State v. Fogarty, 178 Ariz. 170, 172, 871 P.2d 717, 719 (App. 1993) (affirming unlawful flight conviction of motorist whodrove lawfully but nonetheless refused to stop his vehicle). A driver who speeds away during the middle of the traffic stop has no better defense than a person who refuses to stop in the first instance. We conclude the specific elements of the offense identified in Martinez, coupled with the undisputed facts about the stop and on-going investigation, made it unnecessary for the state to prove a siren was not reasonably necessary.

¶12 Mariscal also argues that even if Martinez was decided correctly, there was insufficient evidence that he willfully fled. He contends Martinez is distinguishable because the officer there never possessed the driver's license and pursued the vehicle. Mariscal argues he reasonably could have inferred there would be no pursuit and, indeed, one officer admitted he did not need to pursue Mariscal because he held his license. Mariscal's mens rea argument also fails because of the initial stop and the on-going investigation. He points to no evidence he had been released or otherwise was permitted to leave after he had been stopped. To the contrary, the evidence that he sped away and ran two red lights permitted the inference his flight was willful. Based on the record before us, there was substantial evidence Mariscal willfully fled from a law enforcement vehicle. See In re Joel R., 200 Ariz. 512, ¶¶ 3, 8, 29 P.3d at 288-89 (sufficient evidence of unlawful flight where driver sped...

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