State of Arizona v. Jesus Ismael Rodriguez

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

JESUS ISMAEL RODRIGUEZ,
Appellant.

No. 2 CA-CR 2023-0205
Filed May 13, 2025

Appeal from the Superior Court in Pima County
No. CR20210489001
The Honorable Brenden J. Griffin, Judge

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee

Hernandez & Hamilton PC, Tucson
By Carol Lamoureux and Joshua F. Hamilton
Counsel for Appellant
 STATE v. RODRIGUEZ
Opinion of the Court

OPINION

Judge Vásquez authored the opinion of the Court, in which Judge Sklar
concurred and Presiding Judge Eckerstrom concurred in part and dissented
in part.

V Á S Q U E Z, Judge:

¶1 Jesus Rodriguez appeals his convictions and sentences for
first-degree felony murder, aggravated assault with a deadly weapon,
criminal damage, unlawful flight from a pursuing law enforcement vehicle,
and two counts of driving under the influence of an intoxicant (DUI). On
appeal, Rodriguez argues the trial court erred by (1) improperly giving a
flight instruction to the jury; (2) giving a jury instruction that incorrectly
stated the law on an essential element of the unlawful flight offense;
(3) denying his motion for a judgment of acquittal on the felony murder,
unlawful flight, and criminal damage charges; and (4) admitting his
involuntary statement at trial over his objection. Rodriguez also contends
his life sentence for the felony murder conviction is cruel and unusual, in
violation of the United States and Arizona Constitutions. For the following
reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the
jury’s verdicts and resolve all reasonable inferences against Rodriguez.
See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). Just after midnight on February
21, 2021, a Pima County Sheriff’s Deputy was on patrol driving in a marked
police vehicle when he saw Rodriguez speeding in the opposite direction.
The deputy made a U-turn at the next intersection and “had to accelerate
significantly to catch up.” Rodriguez stopped at the next two red lights, but
each time the light turned green, he “continued on at a high rate of speed
again,” and the deputy could not “catch up.” The deputy confirmed that at
this point he did not “have [his] red and blue lights and siren on” because
he was not close enough to make a traffic stop. However, the deputy
radioed for a police airplane that he knew was overhead to assist with
surveillance.

¶3 A few moments later, Rodriguez turned into an apartment
complex, and the deputy followed. As Rodriguez drove into the complex,

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Opinion of the Court

he slowed to thirty-five to forty miles per hour, which enabled the deputy
to close the distance. When the deputy was “a vehicle distance behind
[Rodriguez],” he “turned on [his] red and blue lights” to make sure
Rodriguez “knew [he] was trying to stop him.” Rodriguez then
significantly slowed to “approximately five to ten miles per hour,” but did
not pull over. The deputy next employed “a couple siren bursts,” but when
Rodriguez still did not pull over, the deputy “activate[d his] sirens
continuously.” Rodriguez then merged closer to the curb lane and
eventually came to a stop. The deputy stopped his vehicle, stepped out,
and “yell[ed] to [Rodriguez] to turn off the car.”1

¶4 Rodriguez drove away and made a high-speed, right-hand
turn onto the adjacent street. For safety reasons, the deputy transitioned
from “active pursuit” to “active surveillance” and watched from a distance
as Rodriguez continued speeding toward the next intersection. Rodriguez
ran the red light and collided with a Chevrolet Malibu that had entered the
intersection across Rodriguez’s path. The collision killed the Malibu’s
driver, R.C., and seriously injured the passenger, M.C. The deputy
reactivated his emergency lights when he arrived at the intersection and
“placed [Rodriguez] in handcuffs.”

¶5 Rodriguez was transported to the hospital for his injuries
from the accident. While there, a DUI investigation officer conducted two
sobriety tests that indicated Rodriguez was impaired. The officer arrested
Rodriguez for DUI and obtained a search warrant to collect samples of his
blood. During the second blood draw, Rodriguez told the officer “I’m
drunk, I ran away from you guys and crashed into that car and I hurt
somebody—I killed somebody.” Rodriguez’s blood alcohol concentration
(BAC) was determined to have been .187 about ninety minutes after the
accident.

¶6 After a three-day jury trial, Rodriguez was convicted as
described above, and the trial court sentenced him to concurrent and
consecutive sentences, the longest of which is life in prison with the
possibility of release after twenty-five years, followed by a 7.5-year prison
term, and time served for his misdemeanor counts. This appeal followed.

1When a police vehicle is put into park, the emergency lights remain

on but the siren automatically deactivates so the officer can speak without
having to “yell over a siren.”

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Opinion of the Court

We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and
13-4033(A)(1).

Discussion

I. Admission of Involuntary Statement

¶7 Rodriguez argues the trial court erred by admitting evidence
of his involuntary statements to police over his objection at trial. We review
issues of statutory interpretation and constitutional law de novo. State v.
Wein, 242 Ariz. 372, ¶ 7 (App. 2017). Because Rodriguez objected to the
introduction of his statements on voluntariness grounds below, our review
is for harmless error.2 State v. Soliz, 223 Ariz. 116, ¶ 10 (2009).

¶8 During the DUI officer’s testimony at trial, the state moved to
admit a video clip of the officer’s body worn camera with footage taken at
the hospital during Rodriguez’s second blood draw. Rodriguez objected,
arguing at the subsequent bench conference that the “essence of the clip”
was Rodriguez’s statement “I’m drunk, I ran from you guys, I killed
somebody.” He asserted that he had “questions about the voluntariness”
of the statement and believed it was “incomplete or taken out of context.”
The state countered that it was “something that [Rodriguez] volunteer[ed]
without being asked a question at all,” and given that a “prerequisite for
voluntariness is some sort of state action,” they were “past the
voluntariness inquiry.” As to the “completeness theory,” the state said it
was focusing on a “relatively short” clip of the full video to avoid the
“portions of the footage where . . . [Rodriguez was] reacting kind of
violently” and saying “stuff the jury shouldn’t hear.” The state also noted

2The state contends Rodriguez “concede[d]” that his failure to
“move to suppress his confession or request a voluntariness hearing below”
means his claims should be “reviewed only for fundamental, prejudicial
error.” See State v. Henderson, 210 Ariz. 561, ¶ 19 (2005). This misinterprets
Rodriguez’s argument. Citing to State v. Tison, 129 Ariz. 526, 535 (1981),
Rodriguez admits that his failure to raise the issue of voluntariness prior to
trial means “he has waived his ability [on appeal] to challenge the absence
of Miranda warnings,” but he otherwise argues the issue was “adequately
preserved” for appellate review because he both “objected to the
introduction [of] his statement at trial” and “presented evidence and
argument that his confession was involuntary.” See State v. Bush, 244 Ariz.
575, ¶ 54 (2018). Rodriguez did not waive his voluntariness argument on
appeal.

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that if Rodriguez wanted to play additional footage from the video, he was
entitled to do so.

¶9 The trial court overruled Rodriguez’s objection, adding “if
there was any sort of voluntariness type objection for the [c]ourt to decide,
that need[ed] to come well-before trial.” The court also noted that
Rodriguez’s other concerns went “to the weight of the evidence,” and as to
the “contextual argument, [Rodriguez could] put it in whatever context he
want[ed] when he present[ed] his case.” The video clip was then admitted
and played for the jury.3

A. Voluntariness Inquiry

¶10 “To be admissible, a statement must be voluntary, not
obtained by coercion or improper inducement.” State v. Ellison, 213 Ariz.
116, ¶ 30 (2006). A confession is presumed to be involuntary, and it is the
state’s burden to prove by a preponderance of the evidence that a
defendant’s statement was freely and voluntarily given. State v. Byrd, 160
Ariz. 282, 283 (App. 1988). However, in the absence of “both coercive police
behavior and a causal relation between the coercive behavior and the
defendant’s overborne will,” the voluntariness of a confession will not be
questioned. State v. Boggs, 218 Ariz. 325, ¶ 44 (2008). And “[w]hen an
officer testifies that the confession was obtained without promises,
threats[,] or coercion,” then “a prima facie case for admissibility is
established.” Byrd, 160 Ariz. at 283. We look to the totality of the

3The video clip contained the following exchange:

Rodriguez: I’m drunk.

Officer: What’s that?

Rodriguez: I ran away from you guys. And I
crashed into that car.

Officer: Yep.

Rodriguez: And I hurt somebody, I killed
somebody.

Officer: You did.

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circumstances surrounding a confession to determine whether a
defendant’s will has been overborne. State v. Blakely, 204 Ariz. 429, ¶ 27
(2003).

¶11 On appeal, Rodriguez asserts his confession was involuntary
on multiple grounds. For all but his argument related to Miranda warnings,
we address each contention in turn.4 First, Rodriguez argues his admission
at the hospital was a “post-arrest statement that was made in direct[]
response to [the DUI officer] informing him that he fled from police and
killed someone,” which was “reasonably likely to elicit an incriminating
response under the circumstances.” The record indicates otherwise.

¶12 The DUI officer assigned to Rodriguez’s case testified that
“right after the first blood draw,” he remembered “telling . . . Rodriguez
that he had killed someone” and that “he ran from the police.” Rodriguez
did not make the inculpatory statements until roughly “an hour later,”
immediately “after the second blood draw.” The officer confirmed that
prior to the statements being made, he had not “ask[ed Rodriguez] a
question”; rather, the officer characterized the statements as “unprompted
utterances” that Rodriguez had “just blurted out.” The body-worn video
confirms the officer’s testimony. It shows that Rodriguez initiated the
exchange, which undercuts a finding of involuntariness. See Byrd, 160 Ariz.
at 283; cf. State v. Noleen, 142 Ariz. 101, 108 (1984) (where defendant initiated
interview from which statements were taken and admitted at trial,
statements were voluntary and any attempt to challenge voluntariness of
those statements “would have been futile”). Thus, we are unpersuaded by
Rodriguez’s argument that his statements were a “direct[] response” to any
information provided by the officer or that the officer in any way
“coerc[ed]” or encouraged a confession. See Boggs, 218 Ariz. 325, ¶ 44.

4Rodriguez additionally argues that his confession was a
“post-arrest, custodial statement that was extracted after Rodriguez had
requested a lawyer and without the benefit of Miranda warnings.”
However, voluntariness and Miranda warning violations are two distinct
inquiries. State v. Rivera, 152 Ariz. 507, 512 (1987). And, as previously
noted, by failing to move to suppress his statements prior to trial,
Rodriguez has waived the ability to challenge the absence of Miranda
warnings on review. See Tison, 129 Ariz. at 535. Therefore, to the extent
Rodriguez raises a Miranda-related claim, we do not address it. See State v.
West, 238 Ariz. 482, ¶ 49 (App. 2015) (failure to properly address or preserve
argument constitutes waiver of appellate review).

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Opinion of the Court

¶13 Next, while Rodriguez seems to concede he was not subjected
to any “express questioning” by law enforcement at the hospital, he argues
that by telling him he “‘ran’ from a deputy and killed someone,” the
officer’s words and actions were “reasonably likely to elicit an
incriminating response” and were therefore the “functional equivalent of
interrogation.” Rodriguez relies on State v. Londo, 215 Ariz. 72, ¶ 6 (App.
2006), and State v. Emery, 131 Ariz. 493, 498 (1982), to support this argument,
but neither case applies. The primary focus in both Londo and Emery was
on Miranda rights, which are not at issue here. Londo, 215 Ariz. 72, ¶¶ 6-11
(inculpatory statement admissible under “private safety exception” to
Miranda); Emery, 131 Ariz. at 496-502 (clear violation of Miranda rights when
interrogation continued after defendant requested counsel and officers
engaged in “impermissible conduct” by threatening defendant with “gas
chamber” and “death penalty” to induce confession).

¶14 Rodriguez next asserts his statement was involuntary because
“it was uttered when [he] was extremely distraught and emotional after
learning he had killed someone.” In the absence of threats, intimidation,
deception, or “physical or psychological pressures exerted by the police,”
State v. Tucker, 157 Ariz. 433, 445 (1988), the fact that Rodriguez was
“extremely distraught and emotional” has no bearing on the admissibility
of his statements. See id. at 446 (question of voluntariness must focus on
police conduct, not solely defendant’s mental state). Rodriguez does not
point to anything in the record to show that the officer threatened,
intimidated, deceived, or exerted any “pressures” on him at any point
during their hospital encounter. Id. at 445. By failing to demonstrate that
his statements were “the product of coercive police tactics,” Rodriguez’s
argument is unavailing. Id.

¶15 Finally, Rodriguez asserts his statement was involuntary
because he “had just been in a serious accident and had sustained injuries
to his head and was in significant pain.” While potentially relevant to
whether he was “susceptible to coercive police conduct,” the fact that
Rodriguez may have been ill or injured at the time he confessed “does not
by itself render the confession involuntary.” See Londo, 215 Ariz. 72, ¶ 13.
Similarly, intoxication will not result in a finding of involuntariness unless
the defendant was “so intoxicated that he could not understand the
meaning of his statements,” rendering them “so unreliable that they must
be excluded.” Tucker, 157 Ariz. at 446. There is nothing in the record that
shows Rodriguez was unable to “reason, comprehend, or resist” when he
confessed. See id. Rather, the hour delay between each of Rodriguez’s
interactions with the officer undermines a finding of coercion and indicates

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Opinion of the Court

he had time to reflect and thus to more fully understand both the gravity of
his situation and the meaning of his statements. See id.

¶16 Again, because Rodriguez has failed to demonstrate coercive
police tactics of any kind, and because the record is devoid of evidence
showing that Rodriguez’s “will [was] overborne,” see Blakely, 204 Ariz. 429,
¶ 27, the trial court did not err by considering his statements voluntary and
admitting them at trial over Rodriguez’s objection, see Tucker, 157 Ariz. at
446.

B. Right to a Sua Sponte Voluntariness Hearing

¶17 Rodriguez nevertheless contends he was entitled to a “sua
sponte voluntariness hearing” at the time his objection was made. He
argues the trial court’s failure to hold such a hearing violated his due
process rights. “A defendant ‘objecting to the admission of a confession’
has a constitutional right grounded in the Fourteenth Amendment’s Due
Process Clause ‘to a fair hearing in which both the underlying factual issues
and the voluntariness of his confession are actually and reliably
determined.’” State v. Bush, 244 Ariz. 575, ¶ 54 (2018) (quoting Jackson v.
Denno, 378 U.S. 368, 380 (1964)). However, due process does not require a
voluntariness hearing “absent some objection by the defendant to the
admission of his confession,” and typically a defendant must “object to the
use of his confession prior to trial unless the opportunity to do so did not
exist, or the defendant was unaware of the grounds for the motion, or the
court, in its discretion, chooses to entertain the motion at trial.” State v.
Alvarado, 121 Ariz. 485, 487 (1979).

¶18 Rodriguez concedes he did not file a motion to suppress his
statements or request a voluntariness hearing prior to trial, and he does not
argue that his failure to do so was based on evidence that “was not then
known” or that “could not have been known” if he exercised “reasonable
diligence” to discover it.5 Ariz. R. Crim. P. 16.1(c); see Bush, 244 Ariz. 575,

5At the bench conference following Rodriguez’s objection, the state

argued it had “disclosed all of the evidence in this case early and often,”
and it had provided Rodriguez with notice of the full hospital video “years”
before trial. This necessarily includes the inculpatory statements Rodriguez
made in the “isolated [twenty-five] second portion” of the video that was
shown to the jury at trial. The ample opportunity Rodriguez had to timely
file a motion to suppress or request a voluntariness hearing supports the

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Opinion of the Court

¶ 51. Nevertheless, citing to A.R.S. § 13-3988 and Bush, 244 Ariz. 575, ¶ 54,
Rodriguez maintains he “sufficiently objected to and challenged the
admissibility of his statement[s] at trial such that he triggered his
constitutional right to a voluntariness hearing.” We disagree.

¶19 In Bush, our supreme court stated “[§] 13-3988(A) provides
that, before a ‘confession is received in evidence, the trial judge shall, out of
the presence of the jury, determine any issue as to voluntariness,’” and
therefore, “consistent with Wainwright and Alvarado, a trial court must
address the issue of voluntariness if a defendant raises it.” 244 Ariz. 575,
¶ 62 (emphasis added in Bush) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)
and Alvarado, 121 Ariz. 485). Here, we agree that Rodriguez’s objection
during trial constituted a “contemporaneous challenge” to the admission of
his statements. Id. ¶ 54 (quoting Wainwright, 433 U.S at 86). However, we
do not interpret Bush’s holding to mean that Rodriguez was thus
“constitutional[ly]” entitled to a sua sponte voluntariness hearing under the
circumstances. Id. ¶ 62; see Alvarado, 121 Ariz. at 487 (right to voluntariness
hearing does not necessarily extend to all stages of criminal proceedings).

¶20 While Bush established that a trial court must “address the
issue of voluntariness,” it did not hold that a trial court must conduct a “sua
sponte hearing.” 244 Ariz. 575, ¶ 62; see Alvarado, 121 Ariz. at 488 (if motion
is untimely or not filed, whether to “entertain a motion for a voluntariness
hearing at trial” is left to exclusive discretion of trial court). Here, the court
adequately addressed the voluntariness issue by holding a bench
conference during which both Rodriguez and the state had an opportunity
to be heard. By overruling Rodriguez’s objection, the court implicitly
determined that his statements were voluntary, and “absent a showing of
clear and manifest error,” we will not upset a court’s determination of
voluntariness on review. Alvarado, 121 Ariz. at 488.

¶21 In sum, Rodriguez was neither constitutionally nor statutorily
entitled to a sua sponte voluntariness hearing. The trial court adequately
addressed the issue of voluntariness, and, finding none, it did not err by
admitting his statements at trial. See Bush, 244 Ariz. 575, ¶ 62; Alvarado, 121
Ariz. at 488.

trial court’s comment that “if there was any sort of voluntariness type
objection for the [c]ourt to decide, that need[ed] to come well-before trial.”

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Opinion of the Court

II. Flight Instruction

¶22 Rodriguez argues that because he was charged with unlawful
flight and felony murder, “both of which contain elements pertaining to
flight,” the trial court’s decision to give a flight instruction was reversible
error. He maintains the instruction risked confusing the jury about which
elements they were required to find in order to return a guilty verdict for
each offense and “may have relieved the [s]tate of its burden of proving
[the] specific elements of those offenses” beyond a reasonable doubt.6 We
review a trial court’s decision to give a jury instruction for an abuse of
discretion. State v. Martinez, 218 Ariz. 421, ¶ 49 (2008).

¶23 Rodriguez objected to the flight instruction at trial, which
would typically preserve the issue for harmless error review. See State v.
Henderson, 210 Ariz. 561, ¶ 18 (2005). Under that standard, the state has the
burden to establish “beyond a reasonable doubt that the error did not
contribute to or affect the verdict.” Id.7 However, in State v. Foster, ___ Ariz.
___, ¶ 57, 559 P.3d 1139, 1153 (App. 2024), this court held that a defendant’s
failure to request a limiting instruction warranted denying relief on his
claim that the flight instruction was improper. In that case, the flight
instruction also applied to other charges and the defendant did not request
an instruction limiting it to those charges and not for the leaving-the-scene
charge. Id. In this case, the unlawful flight instruction did not apply only
to the unlawful flight and felony murder charges—notably it also applied
to the DUI counts. See State v. Salazar, 173 Ariz. 399, 409 (1992) (flight

6Rodriguez generally asserts that a flight instruction is inappropriate

in any case where “a defendant is charged with a crime that involves flight
or concealment as an element of the offense.” However, he relies almost
exclusively on out-of-state cases to support this claim. See Graves v.
Commonwealth, 780 S.E.2d 904, 908 (Va. Ct. App. 2016); State v. Girard, 578
P.2d 415, 417-18 (Or. Ct. App. 1978); State v. Fast Horse, 490 N.W.2d 496 (S.D.
1992). We are not bound by the decisions of courts in other states, State v.
Solis, 236 Ariz. 242, ¶ 14 (App. 2014), and because Arizona caselaw
addresses this issue, we need not look to other jurisdictions for guidance.
7The state argues that even if the flight instruction were improper,

“the error was harmless” because there was overwhelming evidence that
Rodriguez had committed the crime of unlawful flight and the instruction
could not have affected the jury’s verdict. But because Rodriguez has
forfeited all but fundamental error review, we do not address the state’s
harmless error argument.

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Opinion of the Court

instruction proper where defendant’s actions reveal consciousness of
guilt). Because Rodriguez did not request a limiting instruction, he has
forfeited review for all but fundamental, prejudicial error. See Foster, ___
Ariz. ___, ¶ 57, 559 P.3d at 1153; State v. Bolivar, 250 Ariz. 213, ¶ 14 (App.
2020) (applying fundamental error review when party fails to propose or
request limiting instruction at trial).

¶24 A flight instruction may be given if there is evidence of flight
after an offense is committed “from which jurors can infer a defendant’s
consciousness of guilt.” State v. Solis, 236 Ariz. 285, ¶ 7 (App. 2014). Such
an instruction is appropriate if there is evidence supporting a reasonable
inference that: (1) “the flight or attempted flight was open, such as the
result of an immediate pursuit,” or (2) “the accused utilized the element of
concealment or attempted concealment.” State v. Smith, 113 Ariz. 298, 300
(1976). Stated differently, in determining whether to give the instruction,
the trial court must “be able to reasonably infer from the evidence that the
defendant left the scene in a manner which obviously invites suspicion or
announces guilt.” State v. Speers, 209 Ariz. 125, ¶ 28 (App. 2004) (quoting
State v. Weible, 142 Ariz. 113, 116 (1984)). To satisfy the “consciousness of
guilt” requirement, “[i]t is not necessary to show that law enforcement
officers were pursuing the defendant at the time.” State v. Wilson, 185 Ariz.
254, 257 (App. 1995). Merely “leav[ing] the scene” of a crime is insufficient
to support a flight instruction; instead, the inquiry focuses on whether the
defendant “voluntarily withdrew himself ‘in order to avoid arrest or
detention.’” State v. Salazar, 112 Ariz. 355, 356-57 (1975) (quoting State v.
Rodgers, 103 Ariz. 393, 395 (1968)).

¶25 Rodriguez argues, as he did below, the flight instruction
“risked confusing the jury” because “to laypeople, flight[ and] unlawful
flight . . . may sound like the same thing.” He also maintains that the
language in the flight instruction so closely “tracked critical evidence at
trial” that it “further exacerbated the risk that the jury may have believed it
could convict Rodriguez of unlawful flight and felony murder so long as it
was satisfied that he had ‘run[] away.’”8 We are not persuaded by either of
these arguments.

8Specifically, Rodriguez’s argument is based on the flight
instruction’s reference to “running away” in relation to evidence that he
“ran away from [law enforcement]” and the “several references” made
throughout trial “to the fact that Rodriguez ‘ran’ a red light.”

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¶26 The trial court provided the following flight instruction,
pursuant to Revised Arizona Jury Instructions (RAJI) Standard Criminal 9
(5th ed. 2019):

In determining whether the [s]tate has proved
the defendant guilty beyond a reasonable
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. Running away, hiding,
or concealing evidence after a crime has been
committed does not, by itself, prove guilt.

And the court gave the following instruction on the unlawful flight charge:

The crime of unlawful flight from a pursuing
law enforcement officer requires proof of the
following two things: One, the defendant, who
was driving a motor vehicle, willfully fled from
or attempted to elude a pursuing official law
enforcement vehicle; and two, the law
enforcement vehicle was appropriately marked
showing it to be an official law enforcement
vehicle.9

¶27 First, the flight instruction does not contain the same
language or involve the same elements as those of unlawful flight and
felony murder. See A.R.S. §§ 28-622.01 (unlawful flight), 13-1105(A)(2)

9The court also instructed the jury on the definition of “[k]nowingly”

pursuant to A.R.S. § 13-105(10)(b):

Knowingly means that a defendant acted with
awareness of the existence of conduct or
circumstances constituting an offense. It does
not mean that a defendant must have known the
conduct is forbidden by law. It is no defense
that the defendant was not aware of the
existence of conduct or circumstances solely
because of voluntary intoxication.

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(felony murder).10 We therefore do not agree that the flight instruction
“risked confusing the jury with respect to the elements it needed to find” in
order to determine “that Rodriguez ‘wil[l]fully fled’ a pursuing officer and
caused a death during the course of . . . that offense.”

¶28 Further, the type of elusive or furtive conduct that justifies a
flight instruction does not necessarily involve the “wil[l]ful[] flee[ing] or
attempt[ing] to elude a pursuing official law enforcement vehicle”
necessary to establish the crime of unlawful flight. § 28-622.01; compare
RAJI Stand. Crim. 9 (flight instruction), with § 28-622.01 (unlawful flight).
Notably, evidence of a defendant’s actual or attempted “running away” or
“concealment” does not necessarily include an element of “pursuit.”
Wilson, 185 Ariz. at 257.

¶29 Lastly, a jury instruction is not improper simply because it
includes the same language used by witnesses testifying at trial or the same
words as other jury instructions given by the court. And where the
instructions accurately state the law, see State v. Rix, 256 Ariz. 125, ¶¶ 43-44
(App. 2023), similar language is not a reason to assume juror confusion, cf.
State v. Riley, 248 Ariz. 154, ¶ 88 (2020) (court does not speculate that jurors
were misled or confused by instructions).

¶30 We also disagree with Rodriguez’s claim that the flight
instruction may have unconstitutionally “relieved the [s]tate of its burden
of proving [the] specific elements” of the offense of unlawful flight.11 “In
assessing the constitutionality of jury instructions dealing with
presumptions, ‘we must first determine if the presumption is mandatory or
permissive.’” State v. Abdi, 226 Ariz. 361, ¶ 9 (App. 2011) (quoting State v.

10With regard to felony murder, the trial court instructed the jury:

“The crime of first-degree felony murder requires proof that, one, the
defendant committed unlawful flight from a pursuing law enforcement
vehicle; and two, in the course of and in furtherance of that offense or
immediate flight from that offense, the defendant caused the death of any
person.”
11Rodriguez’s murder conviction was based on the jury finding him

guilty of unlawful flight. Because felony murder “requires no specific
mental state other than what is required for the commission” of the felony
upon which it is predicated, § 13-1105(B), we address Rodriguez’s claim
regarding the risk of confusion from the flight instruction only as it relates
to the elements of unlawful flight.

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Lopez, 134 Ariz. 469, 472 (App. 1982)). “A mandatory presumption instructs
the jury that it must infer the presumed fact if the State proves certain
predicate facts.” State v. Peraza, 239 Ariz. 140, ¶ 28 (App. 2016) (quoting
Francis v. Franklin, 471 U.S. 307, 314 (1985)). In contrast, “a permissive
inference suggests to the jury a possible conclusion to be drawn if the State
proves predicate facts, but does not require the jury to draw that
conclusion.” Foster, ___ Ariz. ___, ¶ 62, 559 P.3d at 1154, (quoting Peraza,
239 Ariz. 140, ¶ 29). And while “[m]andatory presumptions represent an
impermissible burden shift when ‘they relieve the State of the burden of
persuasion on an element of an offense,’” Peraza, 239 Ariz. 140, ¶ 28
(quoting Francis, 471 U.S. at 314), “the use of a permissive presumption is
constitutional if there is a rational connection between the predicate and
presumed facts,” State v. Platt, 130 Ariz. 570, 574 (App. 1981).

¶31 Here, the flight instruction provided that “[i]n determining
whether the [s]tate has proved the defendant guilty beyond a reasonable
doubt,” the jury “may consider any evidence of the defendant’s running
away, hiding, or concealing evidence” together with the rest of the evidence
in the case. RAJI Stand. Crim. 9 (emphasis added). The trial court also
expressly instructed the jury that evidence of flight or concealment, without
more, does not establish guilt. Id.; see Foster, ___ Ariz. ___, ¶ 63, 559 P.3d at
1154. As noted above, the flight instruction applied to the DUI counts and
provided context for Rodriguez’s conduct. The instruction “permitted but
did not require,” Foster, ___ Ariz. ___, ¶ 63, 559 P.3d at 1154, the jury to
consider Rodriguez’s failure to stop as evidence that he had a
“consciousness of guilt” for driving under the influence, Solis, 236 Ariz. 285,
¶ 7. Specifically, it allowed the jury to determine whether, by continuing to
drive away from the deputy, Rodriguez was attempting to “voluntarily
withdr[a]w himself ‘in order to avoid arrest or detention’” for the DUI
offenses. Salazar, 112 Ariz. at 357 (quoting Rodgers, 103 Ariz. at 395).
Despite Rodriguez’s argument to the contrary, the instruction served that
purpose even though he acknowledged while testifying that he had
committed DUI. The jury was still required to reach a verdict on the DUI
charge, and the instruction assisted it in doing so.

¶32 In addition, Rodriguez argues that a flight instruction on DUI
was improper because DUI is a strict-liability offense. Because a flight
instruction is relevant only to consciousness of guilt, he reasons, it has no
relevance to crimes that lack a mental-state element. Whatever the merits
of this argument, we deem it waived because Rodriguez raised it for the
first time in his reply brief. See State v. Brown, 233 Ariz. 153, ¶ 28 (App.

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 STATE v. RODRIGUEZ
Opinion of the Court

2013). Applying waiver is especially appropriate in light of the limited
scope of our fundamental error review.

¶33 Nevertheless, because Rodriguez’s actions invited “some
suspicion of guilt,” the trial court did not abuse its discretion by giving the
flight instruction. State v. Parker, 231 Ariz. 391, ¶ 48 (2013) (quoting State v.
Thornton, 187 Ariz. 325, 334 (1996)). There was no error, fundamental or
otherwise. See State v. Murray, 250 Ariz. 543, ¶ 14 (2021) (first step of
fundamental error review is “determining whether trial error exists.”
(quoting State v. Escalante, 245 Ariz. 135, ¶ 21 (2018))).

III. Unlawful Flight Instruction

¶34 Rodriguez argues the trial court committed fundamental
error by misstating the law in its unlawful flight instruction. He contends
the instruction did not include a requirement that the officer use his siren
“as reasonably necessary.” We review de novo whether a jury instruction
correctly states the law and consider the instructions as a whole to
determine whether the jury received the information necessary to reach a
legally correct decision. State v. Ewer, 254 Ariz. 326, ¶ 10 (2023). Because
Rodriguez failed to object to the unlawful flight instruction below, he has
forfeited review all but for fundamental, prejudicial error. See Henderson,
210 Ariz. 561, ¶ 19.

¶35 Arizona’s unlawful flight statute, § 28-622.01, provides in
relevant part:

A driver of a motor vehicle who
wil[l]fully flees or attempts to elude a pursuing
official law enforcement vehicle is guilty of a
class 5 felony if the law enforcement vehicle
is . . . 1. Being operated in the manner
described in [A.R.S.] § 28-624, subsection C and
is appropriately marked to show that it is an
official law enforcement vehicle.

¶36 As we articulated in State v. Martinez, 230 Ariz. 382, ¶ 8 (App.
2012), “the essential elements of the crime of unlawful flight are: (1) the
defendant, who was driving a motor vehicle, willfully fled or attempted to
elude a pursuing law enforcement vehicle, and (2) the law enforcement
vehicle was appropriately marked showing it to be an official law
enforcement vehicle.” We have also determined that the plain language of
“§ 28-624(C), to which § 28-622.01 refers, requires the driver of an

15
 STATE v. RODRIGUEZ
Opinion of the Court

authorized emergency vehicle to use a siren or other audible signal only ‘as
reasonably necessary.’” In re Joel, 200 Ariz. 512, ¶ 5 (App. 2001); see Simkins
v. Pulley, 116 Ariz. 487, 491 (App. 1997) (“[T]he language of [§ 28-624(C)]
sets forth the parameters of the duty ‘as may be reasonably necessary.’”).

¶37 Relying on In re Joel, Rodriguez argues the proper
interpretation of § 28-624(C) mandates the use of sirens “as reasonably
necessary” as an essential element of the offense of unlawful flight. And
while he concedes “the Martinez court correctly determined that ‘activation
of emergency lights is not an essential element’ of unlawful flight,” he
insists Martinez relied on a “misinterpretation of In re Joel” when it
“erroneously concluded that the use of sirens is also not an element of the
offense.” He further contends “the Martinez court ignored § 28-622.01’s
reference to [§] 28-624(C) and rendered the entire provision of the statute
meaningless.” We disagree. In Martinez, we expressly “d[id] not reach the
issue of whether unlawful flight requires proof that an officer used sirens
‘as reasonably necessary’” because the issue “was not presented to the trial
court and ha[d] not been addressed by the parties on appeal.” 230 Ariz.
382, n.3. In that case, we addressed only the use of emergency lights.12 See
id.

¶38 Rodriguez also misinterprets In re Joel. Contrary to his
argument, we did not hold that the use of a siren is an essential element of
the offense of unlawful flight. Rather, we concluded “[i]t is clear from the
plain language of § 28-624(C) that drivers of authorized emergency
vehicles—and, by extension, law enforcement officers under § 28-622.01—
must only use a siren or other audible warning ‘as reasonably necessary.’”
200 Ariz. 512, ¶ 7 (emphasis added). And because the pursuing deputy in
In re Joel testified that it was unnecessary to activate his siren under the
circumstances, we concluded the state had “established the requisite

12Relying on In re Joel, we stated that “[w]hile operating emergency

lights may provide circumstantial evidence that a defendant was ‘willfully’
fleeing from an official law enforcement vehicle, activation of emergency
lights is not an essential element of the crime of unlawful flight.” Martinez,
230 Ariz. 382, ¶ 7. We then clarified that § 28-622.01 does not require proof
that a pursuing law enforcement vehicle was being operated with
emergency lights. Id. We noted that any statement to the contrary in State
v. Nelson, 146 Ariz. 246, 249 (App. 1985) is “dicta, and overlooks ‘the
exception in § 28-624(C) for police vehicles vis-a-vis the emergency lights
requirement.’” Martinez, 230 Ariz. 382, ¶ 7 (quoting State v. Fiihr, 221 Ariz.
135, n.2 (App. 2008)); see also In re Joel, 200 Ariz. 512, ¶ 5.

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Opinion of the Court

elements of the offense under §§ 28-622.01 and 28-624(C)” based only on
the deputy’s activation of his emergency lights. Id. ¶ 8.

¶39 In any event, we need not resolve whether the use of a siren
“only ‘as reasonably necessary,’” In re Joel, 200 Ariz. 512, ¶ 5, amounts to an
element of the offense. Our review for fundamental error also requires
Rodriguez to demonstrate prejudice. See Escalante, 245 Ariz. 135, ¶¶ 18, 21.
To prove prejudice, Rodriguez must show that a reasonable, properly
instructed jury “could have reached a different result.” State v. James, 231
Ariz. 490, ¶ 15 (App. 2013). Here, the state established that the deputy
activated his siren—first in a series of “bursts” and then “continuously”—
to the extent he deemed reasonably necessary under the circumstances. See
In re Joel, 200 Ariz. 512, ¶ 7. On the record presented, Rodriguez has failed
to show resulting prejudice.

IV. Denial of Motion Under Rule 20, Ariz. R. Crim. P.

¶40 Rodriguez argues the trial court erred in denying his motion
for a judgment of acquittal as to the felony murder, unlawful flight, and
criminal damage charges.13 We review a court’s ruling on a Rule 20 motion
de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011). We will not reverse unless
there is “a complete absence of probative facts to support a conviction.”
State v. Mathers, 165 Ariz. 64, 66 (1990). “[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime

13In his opening brief, Rodriguez claims he “moved for judgment of

acquittal on all counts” at trial. But when arguing the motion to the trial
court, Rodriguez focused on the unlawful flight, the first-degree felony
murder, and the criminal damage charges, contending there was
insufficient evidence for those counts to go to the jury. Rodriguez noted
“generally regarding . . . the DUIs and the aggravated assault,” that the
state had not “met its burden there either,” but he did not provide any
meaningful argument on those charges. Most importantly, Rodriguez
concedes in his opening brief that “[a]t trial, [he] admitted he drove under
the influence, caused a fatal collision, and was thus responsible for causing
R.C.’s death and M.C.’s injuries.” Given Rodriguez’s failure to develop
sufficient argument on appeal and his concession at trial of guilt on the DUI
and aggravated assault charges, we affirm those convictions and sentences
despite Rodriguez’s claim that he moved for acquittal “on all charges.” See
Ariz. R. Civ. App. P. 13(a)(7); Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App.
2009).

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Opinion of the Court

beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). If reasonable people “may fairly differ as to whether certain
evidence establishes a fact in issue, then such evidence must be considered
as substantial.” State v. Tison, 129 Ariz. 546, 553 (1981) (quoting State v.
Bearden, 99 Ariz. 1, 4 (1965)).

A. Criminal Damage

¶41 Rodriguez argues the state “presented no evidence regarding
the value of the Malibu or the cost of damage other than establishing that it
was ‘totaled.’” He therefore contends his conviction for criminal damage
was “not supported by substantial evidence and must be vacated.” A
person commits criminal damage by “[r]ecklessly defacing or damaging
property of another person.” A.R.S. § 13-1602(A)(1). Rodriguez’s criminal
damage conviction was designated a class five felony because the jury
determined that the total amount of damage was “$2,000 or more but less
than $10,000.” See § 13-1602(B)(3). The state bears the burden of
establishing the amount of damages and demonstrating the method used
to calculate the amount. State v. Brockell, 187 Ariz. 226, 229 (App. 1996). If
a defendant disputes the state’s method, he or she can present evidence of
what the defense deems a more accurate calculation, and the jury can
decide which is the more reasonable method under the circumstances when
determining the appropriate amount of damages. Id.

¶42 In denying Rodriguez’s Rule 20 motion on the criminal
damage count, the trial court stated that “with the jury’s common
understanding of vehicles [and] what they cost, given the dollar amounts
involved here,” the evidence was sufficient. The court concluded that “how
high up the jury can go” with the value determination was “well within
the[] province of their common understanding.” Rodriguez acknowledges
that “no particular method of calculation is required to determine value”
and “the jury is entitled to rely on its commonsense knowledge” when
making determinations about damages. See Brockell, 187 Ariz. at 229.
Nevertheless, he maintains the state was required to “at least present some
evidence from which the jury could conclude that the loss was greater than
$2,000, which it failed to do.”

¶43 Our supreme court has determined that “specific testimony
of value is not always necessary if value may be inferred from other
evidence, and the item is not so unique as to require expert valuation
testimony.” State v. Spears, 184 Ariz. 277, 290 (1996). In Spears, the court
noted that the only valuation for the victim’s stolen 1984 Dodge Rampage
truck came from Spears, who had informed his girlfriend and police officers

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Opinion of the Court

that he had paid $3,000 for the truck. Id. But the court stated that given the
circumstances of how Spears possessed the truck, “he was not qualified as
the owner of the truck to give an opinion as to its value.” Id. The court also
noted there was testimony that the truck was in good condition and it “was
operable because [the] defendant drove it until the time of his
arrest.” Id. The court concluded that “[b]ecause the truck in this case was
not unique, we find that the state offered sufficient evidence at trial from
which the jury could infer that the truck was worth between $750 and
$1,500.” Id.

¶44 In this case, the state presented evidence that R.C. was driving
the Malibu just before the collision. It was therefore operable. Additionally,
the state presented testimony that the Malibu was a total loss, and the trial
court admitted photographs of the vehicle into evidence. From the photos,
the jury could infer the condition of the vehicle prior to the collision.
During closing arguments, the state acknowledged that the owner of the
Malibu “wasn’t able to provide a value” and that the jury needed to be
“firmly convinced” that the value “falls within the bookends of that $2,000
to $10,000” in order to find Rodriguez guilty of criminal damage as a class
five felony. The prosecutor further stated that “the evidence has proven,
even in spite of a specific value [not] being given,” that “the manner in
which” the Malibu was totaled, while it “may not be $10,000,” it was “at
least $2,000.”

¶45 Viewed in the light most favorable to sustaining the jury’s
verdict, as we are required to do, see State v. Arredondo, 155 Ariz. 314, 316
(1987), the photographic evidence and the testimony that the vehicle was
“totaled” were sufficient to support the jury’s finding that the damage was
at least $2,000 but less than $10,000. Moreover, the criminal damage verdict
form included three different ranges for “the total amount of damage
caused” and the jury was instructed to “check only one.” The ranges, listed
in descending order, were: “$2,000 or more but less than $10,000”; “$1,000
or more but less than $2,000”; or “$250 or more but less than $1,000.” Given
the inherent imprecision that is represented by a “range,” a specific dollar
figure was not required to support Rodriguez’s criminal damage charge.
See Brockell, 187 Ariz. at 228 (“while there are generally accepted rules for
calculating damage amounts, none of the rules guarantees a precise,
formulaic application by the trier of fact,” and the measure of damages
chosen is one court deems most tailored to case). Here, the jury was given
a broad range of potential valuations for the vehicle from $250 to $9,999. It
determined the damage to the Malibu was at least $2,000, and we will not
disturb that finding by reweighing the evidence. See State v. Buccheri-Bianca,

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Opinion of the Court

233 Ariz. 324, ¶ 38 (App. 2013). The trial court therefore did not err in
denying Rodriguez’s Rule 20 motion as to the criminal damage count. See
Mathers, 165 Ariz. at 66.

B. Unlawful Flight

¶46 Rodriguez argues there was insufficient evidence to sustain
his unlawful flight conviction because the state failed
“to prove (1) he was aware of the deputy’s presence, (2) that his failure to
stop was willful, and (3) that the deputy was ‘in pursuit.’”14 We disagree.

¶47 As previously noted, a person commits unlawful flight if,
while driving a motor vehicle, the person “wil[l]fully flees or attempts to
elude a pursuing official law enforcement vehicle” and the law enforcement
vehicle is appropriately marked to show that it is a law enforcement vehicle.
§ 28-622.01; see Martinez, 230 Ariz. 382, ¶ 8. While not always required, the
activation of emergency lights or the use of an audible siren may provide
circumstantial evidence that a defendant was “‘willfully’ fleeing.”
Martinez, 230 Ariz. 382, ¶ 7; see In re Joel, 200 Ariz. 512, ¶¶ 7-8; State v. Fiihr, 221 Ariz. 135, ¶ 11 (App. 2008) (“[D]epending on the circumstance, use of a
siren or other audible signal may not be necessary when pursuing a fleeing
motor vehicle.”). Additionally, any refusal to stop on command of an
officer who is in an official police vehicle “violates the felony flight
statute . . . even if that pursuit does not attain excessive speeds or involve
reckless driving.” State v. Fogarty, 178 Ariz. 170, 171 (App. 1993).

¶48 Citing Fogarty and Fiihr, Rodriguez acknowledges that
“Arizona courts have found evidence sufficient to sustain a conviction for
unlawful flight even in the absence of evidence associated with a
stereotypical pursuit or flight.” See Fogarty, 178 Ariz. 170; Fiihr, 221 Ariz.
135. He attempts to distinguish his situation from Fiihr and Fogarty by
arguing that “those cases have also involved overwhelming evidence
establishing the defendant knew he was being pursued,” whereas in his

14When the deputy arrived at the intersection after the accident,
Rodriguez was “climbing out of the driver[-side] window” of his vehicle,
but he quickly “fell to the ground” and was “in and out of consciousness.”
The state did not allege that Rodriguez fled or attempted to flee from the
scene of the collision; the unlawful flight charge pertained only to
Rodriguez fleeing from the deputy after the attempted traffic stop in the
apartment complex parking lot.

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Opinion of the Court

case, he contends “substantial evidence was presented that suggested
Rodriguez was unaware of the deputy.”

¶49 To support this claim, Rodriguez contends that the deputy
“testified that it did not appear that Rodriguez was aware of his presence
behind him on [the surface streets], or that his reckless driving behavior
was an attempt to elude [the deputy].” He further claims that “[e]ven after
the deputy activated his lights, from his testimony, it appears he still had
doubts as to whether Rodriguez was aware that he was attempting to stop
him.” But these arguments overlook the context in which the statements
were made and ultimately request that we reweigh the evidence, which we
will not do. See Buccheri-Bianca, 233 Ariz. 324, ¶ 38.

¶50 The state submitted as an exhibit the video of aerial
surveillance footage from the airplane that had captured the majority of the
deputy’s encounter with Rodriguez in the apartment complex parking lot.
On cross-examination, Rodriguez admitted he was the one “on the video”
driving through the parking lot with the deputy “immediately behind [him]
with . . . red and blue lights on” for “at least [fifty] seconds.” He also
confirmed that he had “slowed down, . . . pulled over to the right, and . . .
stopped just long enough for the deputy to get out of his car and put his
foot on the ground” before Rodriguez sped off. Additionally, Rodriguez
admitted that he had been “concerned about driving home that evening”
and that, after nearly rear-ending another car on his way back to the
apartment complex, he had “realized [he] was maybe a little too drunk to
drive.”

¶51 On cross-examination at trial, the deputy confirmed that after
Rodriguez “t[ook] off” from the attempted traffic stop at the apartment
complex, he “immediately deactivated [his] overhead lights,” transitioned
from “active pursuit” to “active surveillance,” and began observing
Rodriguez “from a significant distance.” When he was asked if it was “fair
to say [he was] not pursuing the vehicle anymore,” the deputy responded
“[t]hat is not correct,” explaining that even though he “was not physically
pursuing” Rodriguez, “the Sheriff’s Department was still pursuing th[e]
vehicle” via the surveillance airplane.

¶52 Rodriguez agrees the deputy’s testimony about his driving
behavior moments before the attempted stop was “evidence that arguably
suggested Rodriguez may have been aware that the deputy was attempting
to stop him,” but he maintains “that evidence was undercut by Rodriguez’s
testimony, which provided an explanation for that behavior.” Indeed,
although he did “not disput[e] what[ was] in the video,” Rodriguez testified

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Opinion of the Court

that he “had no idea that there was a deputy in a Chevy Tahoe immediately
behind [him th]at night” and insisted he never “s[aw the deputy’s] red and
blue lights on” nor “hear[d] his siren” because he “had the music real loud”
in his car at the time. Rodriguez explained that in slowing down and
pulling over to the right, he “w[as]n’t stopping for [the deputy]”; rather, he
was “stopping because [he] was looking for [his] phone and realized it was
in [his] car somewhere.” He also claimed that he “took off quickly” after
coming to a complete stop because he was “frustrated” and once he
“realized that [his] phone was in the car somewhere,” he “just wanted
to . . . go back home.”

¶53 However, this alternative explanation for Rodriguez’s
conduct does not undermine the sufficiency of the evidence. See State v.
Landrigan, 176 Ariz. 1, 4 (1993) (that reasonable minds could differ on
inferences to be drawn does not render evidence insubstantial). Conflicting
testimony creates a question of fact that is to be decided by the jury, id.,
whose province we will not invade by reweighing evidence on appeal,
Buccheri-Bianca, 233 Ariz. 324, ¶¶ 38-39. Viewed in the light most favorable
to sustaining Rodriguez’s convictions, the evidence presented was
sufficient for a reasonable juror to conclude that Rodriguez was aware of
the deputy’s presence, and that his failure to stop was willful. See Mathers,
165 Ariz. at 66.

C. Felony Murder

¶54 Rodriguez posits that even if we determine there was
sufficient evidence to support his unlawful flight conviction, his conviction
for felony murder is “insufficient on other grounds” because “it is clear in
this case that R.C.’s death was not caused in the course of an unlawful flight
from a pursuing officer.” He argues that “even assuming the deputy’s
encounter with Rodriguez initially amounted to a pursuit,” that pursuit
“ended when the deputy turned off his lights and sirens and transitioned
to surveillance mode.” A death occurs in the course or furtherance of an
underlying felony if it “resulted from an action taken to facilitate the
accomplishment of the felony.” State v. Burns, 237 Ariz. 1, ¶ 77 (2015)
(quoting State v. Jones, 188 Ariz. 388, 397 (1997)). A close temporal
relationship between the acts facilitating the underlying felony and the
victim’s death supports the finding of a valid predicate felony for a first-
degree murder charge. See Jones, 188 Ariz. at 397-98. “Whether a death is
‘in furtherance’ of an underlying felony is ordinarily a question to be
determined by the trier-of-fact.” State v. Herrera, 174 Ariz. 387, 394 (1993).

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Opinion of the Court

¶55 As a preliminary matter, Rodriguez does not cite to, and we
are not aware of, any controlling caselaw that supports his claim that a
pursuit “ends” when a police officer deactivates his lights, his siren, or both.
In Fogarty, we held that an officer is not required to continue the pursuit if
he deems it unnecessary or a risk to public safety. See 178 Ariz. at 171-72.
The officer in Fogarty expressly “gave up the chase” at the city limits, and
the defendant “was later arrested at his home.” Id. at 171. And although
the defendant was “stopping at stop lights and otherwise obeying the traffic
laws,” we held that his “refusal to stop on command” of an officer who was
driving a police car “violate[d] the felony flight statute because of the
potential for personal danger inherent in vehicular pursuit.” Id. Here, as
in Fogarty, the deputy testified that while he could have “put the pedal to
the metal and chased after [Rodriguez],” he made the “decision to
essentially let [the vehicle] go, [and] let the plane deal with it” because
“there was no reason to put the public in danger.”

¶56 The fact that the deputy transitioned to “active surveillance”
immediately prior to the collision did not sever the causal connection
between R.C.’s death and Rodriguez’s predicate felony of unlawful flight.
See State v. Richmond, 112 Ariz. 228, 232 (1975). Under Arizona’s felony
murder rule, “there is no requirement that the killing occur, while
committing or while engaged in the felony, or that the killing be a part of
the felony other than that the few acts be a part of one continuous
transaction.” Id. (quoting People v. Stamp, 82 Cal. Rptr. 598, 602 (Ct. App.
1969)). Here, the “felony and the murder were part of the same series of
events,” and thus there was a “sufficient link” between Rodriguez’s
unlawful flight and R.C.’s death to uphold a felony-murder conviction. Id.

¶57 In sum, “pursuit” for the purposes of unlawful flight does not
require evidence that officers were “chasing” the defendant with lights and
sirens activated at the exact moment the defendant causes the death of
another person. See Fogarty, 178 Ariz. at 171-72; Fiihr, 221 Ariz. 135, ¶ 11.
The state presented sufficient evidence for a reasonable jury to conclude
that by driving from the attempted traffic stop, Rodriguez “wil[l]fully
fle[d]” from a “pursuing official law enforcement vehicle,” § 28-622.01, and
in the course and furtherance of that flight, Rodriguez killed R.C., see
§ 13-1105(A)(2); Mathers, 165 Ariz. at 66. The short span of time between
Rodriguez’s flight from the attempted traffic stop and the fatal collision
further supports the jury’s determination that R.C.’s death occurred in the
course of the unlawful flight. See Jones, 188 Ariz. at 397-98. The trial court
did not err in denying Rodriguez’s Rule 20 motion on the felony murder
count. See Mathers, 165 Ariz. at 66.

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Opinion of the Court

V. Propriety of Life Sentence for Felony Murder

¶58 Rodriguez argues that the imposition of a life sentence for his
felony murder conviction is “cruel and unusual in violation of the United
States and Arizona constitutions.”15 We review de novo whether a
defendant’s sentence complies with the Eighth Amendment. State v. Jerald, 257 Ariz. 342, ¶ 23 (App. 2024). Rodriguez preserved the issue by objecting
below, so our review is for harmless error. See Henderson, 210 Ariz. 561,
¶ 18.

¶59 The Eighth Amendment’s prohibition against “cruel and
unusual punishments” protects individuals from being subjected to
excessive sanctions and ensures that punishment for a crime is “graduated
and proportioned to the offense.” State v. Berger, 212 Ariz. 473, ¶ 8 (2006)
(quoting Roper v. Simmons, 543 U.S. 551, 560 (2005)). There is no
requirement for strict proportionality between crime and sentence. Id. ¶ 13.
Rather, the provision forbids extreme sentences that are “grossly
disproportionate,” and only in “‘exceedingly rare’ cases will a sentence to a
term of years violate the Eighth Amendment.” Id. ¶¶ 10, 17 (quoting Ewing
v. California, 538 U.S. 11, 22-23 (2003)).

¶60 Rodriguez argues § 13-1105 is “cruel and unusual insofar as it
requires a mandatory life sentence for felony murder based on unlawful
flight” because Arizona’s unlawful flight statute “covers a broad range of
conduct” that “is not limited to high-speed chases,” but “also includes the
mere refusal to stop for a pursuing officer.”16 However, in Arizona, a

15Rodriguez also argues that his life sentence violates article II, § 15

of the Arizona Constitution, the state corollary to the Eighth Amendment
of the United States Constitution. Because the state provision is identical to
and provides no greater protection than its federal counterpart, we address
both claims in our Eighth Amendment analysis. See State v. Davis, 206 Ariz.
377, ¶ 12 (2003).
16Rodriguez claims Arizona law offers “no sentencing discretion for

felony murder” because “courts have no choice but to impose a mandatory
life sentence without the possibility of release for [twenty-five] years.” This
is an inaccurate representation of Arizona’s sentencing statute, which
provides that if a “defendant is convicted of first-degree murder pursuant
to § 13-1105[(A)(2)],” the court has the discretion “to impose a sentence of
life or natural life.” A.R.S. § 13-752(A). Rodriguez was sentenced to the
lesser of the two options—a sentence of life with the possibility of release

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Opinion of the Court

sentence imposed under the felony murder statute is not unconstitutional
simply by virtue of the type of felony on which it is predicated. Cf. State v.
Celaya, 135 Ariz. 248, 254 (1983) (no “strained application” of felony murder
rule where defendant was found guilty of felony robbery). Moreover, “[i]n
comparing the gravity of the offense to the harshness of the penalty,” we
afford substantial deference to the legislature’s judgment, and a sentence
does not violate the Eighth Amendment if the legislature has a reasonable
basis for believing the sentencing scheme furthers penological goals and
reflects a rational legislative intent. Berger, 212 Ariz. 473, ¶¶ 13, 17.

¶61 While Rodriguez concedes his “offense was undoubtedly
serious and warrants substantial punishment,” he maintains his conduct
does not “warrant a life sentence” because he “did not intentionally cause
the collision or R.C.’s death.” However, in State v. McLoughlin, 139 Ariz.
481, 485-86 (1984), our supreme court squarely addressed and rejected this
argument:

[T]he mens rea necessary to satisfy the
premeditation element of [felony] first-degree
murder is supplied by the specific intent
required for the [relevant underlying] felony.
We reject [the] claim that this is
unconstitutional. It is not unconstitutional for
the Arizona legislature to mandate that an
individual who causes the death of another
while seeking to accomplish one of several
enumerated felonies . . . be subject to the same
criminal charges and punishment as a person
who causes the death of another person with
premeditation.

¶62 “We are bound by decisions of the Arizona Supreme Court
and have no authority to overrule, modify, or disregard them.” Myers v.
Reeb, 190 Ariz. 341, 342 (App. 1997) (quoting City of Phoenix v. Leroy’s
Liquors, Inc., 177 Ariz. 375, 378 (App. 1993)). Here, Rodriguez was found
guilty of unlawful flight, which is one of the enumerated predicate felonies
for felony murder. See § 13-1105(A)(2). The imposition of a first-degree
murder sentence thus does not violate Rodriguez’s constitutional rights.

after twenty-five years. Thus, the trial court both recognized and exercised
the sentencing discretion available given Rodriguez’s conviction.

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Opinion of the Court

See A.R.S. §§ 13-752(A); 13-1105(B); § 28-622.01(A)(1); see also State v. Moore, 218 Ariz. 534, ¶ 8 (App. 2008).

¶63 Rodriguez also argues his life sentence is cruel and unusual
because “offenders who commit crimes similar to [his] are more frequently
charged and convicted of second-degree murder or manslaughter, even in
cases involving flight.”17 However, it is only once “an inference of gross
disproportionality” is found that we will in engage in a comparison
between “the sentences the state imposes on other crimes and the sentences
other states impose for the same crime.” Berger, 212 Ariz. 473, ¶ 12. Because
we find no such threshold showing here, no further inquiry is required.
Moreover, choosing which offense to charge rests within the duty and
discretion of the prosecutor, and we generally will not disturb that decision
on review. See State v. Gooch, 139 Ariz. 365, 365 (1984); State v. Murphy, 113
Ariz. 416, 418 (1976) (courts have no power to interfere with prosecutor’s
exercise of discretion unless prosecutor is “acting illegally or in excess of
his powers”). There was no error in the imposition of Rodriguez’s life
sentence, constitutional or otherwise.

Disposition

¶64 For the foregoing reasons, we affirm Rodriguez’s convictions
and sentences.

E C K E R S T R O M, Presiding Judge, concurring in part and dissenting in
part:

¶65 In a criminal damage case, the state has the burden of
establishing the amount of damage and the method of calculating that
amount. State v. Brockell, 187 Ariz. 226, 229 (App. 1996). And, to survive a
judgment of acquittal on the amount of damage, the state must present
substantial evidence to prove the value of that loss. See Ariz. R. Crim. P.
20(a)(1). Substantial evidence is “such proof that reasonable persons could

17To support this contention, Rodriguez cites two unpublished
memorandum decisions, which are not binding on this court and do not
persuade us to reach a different conclusion. See Ariz. R. Sup. Ct.
111(c)(1)(C) (“Memorandum decisions of Arizona state courts are not
precedential and such a decision may be cited only for persuasive
value . . . .”).

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 STATE v. RODRIGUEZ
Opinion of the Court

accept as adequate and sufficient to support a conclusion of defendant’s
guilt beyond a reasonable doubt.” Parker, 231 Ariz. 391, ¶ 70.

¶66 Here, the state presented evidence that the car had been
“totaled.” This would allow the jury to reasonably conclude that the
amount of damage would be the fair market value of the car before the
collision. But the state presented no testimony whatsoever about that value,
much less any “method” of calculating it. And, although “specific
testimony of value is not always necessary if value may be inferred from
other evidence,” Spears, 184 Ariz. at 290, the state presented little evidence
from which the jury could make such inferences. The combination of
testimony and photographs demonstrated only that the car was an operable
Chevrolet Malibu that appeared to have interior upholstery in good
condition.18 In my view, such sparse evidence falls short of anything this
court should characterize as substantial. In essence, the state asked the jury
to conclude, beyond a reasonable doubt, that all operable Chevrolet
Malibus with good upholstery must be worth at least $2,000.

¶67 Although the make and model of the car and the condition of
its upholstery are relevant to its value, the state failed to present any
evidence addressing a host of other important factors. How old was the
car? How many miles had it been driven during its life? What was the
mechanical condition of its engine before the collision? Did the car have a
clean or salvage title? In the absence of a collision, would it have needed
expensive repairs in the near future? The jury was left to wholly speculate
on all of these basic questions, each potentially pivotal in determining a
vehicle’s value.

¶68 Our supreme court has insisted that evidence of an item’s
value be more substantial to sustain a criminal conviction. In determining
the value of stolen items in a theft case, the court found testimony that a
wedding band was “pure gold” insufficient to support that its market value
was over $60. State v. Rushing, 156 Ariz. 1, 4 (1988); see also State v. Grannis,

18I cannot agree with my colleagues that the overall condition of the

car can be reasonably inferred from the post-collision photos. Those photos
show paint discolorations around the wheel well on the non-collision side
of the vehicle and the absence of a hubcap on the collision side. The state
leaves the jury to speculate about whether these blemishes were caused by
the accident or were pre-existing. Most importantly here, the photographs
in evidence shed no light on the pre-collision mechanical condition of the
engine. Nor do they show the mileage on the car’s odometer.

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 STATE v. RODRIGUEZ
Opinion of the Court

183 Ariz. 52, 57 n.1 (1995) (circumstantial evidence that victim visited ATM
to withdraw $200 was insufficient evidence to show total contents of stolen
wallet worth over $1,500). The court so found although the state had
presented arguably the most important piece of information in determining
the ring’s value. The state’s presentation here failed to clear even that bar,
as it presented no substantial evidence of the vehicle’s age, mileage, or
overall mechanical condition.

¶69 The majority finds support for its contrary conclusion in
Spears, 184 Ariz. at 290 (holding state offered sufficient evidence to infer
value of truck). There, however, the state offered more than mere evidence
of the vehicle’s operability and condition of its upholstery. It presented the
model year of the truck, testimony from a person familiar with the truck
that it was in “good condition,” and the defendant’s own valuation of the
truck as being worth approximately $3,000. Id. Those additional facts—
which included the age of the vehicle and a knowledgeable opinion that
implicitly included an assessment of its mechanical condition—provided
reasonable bases for inferences not available to the jury in the instant case.

¶70 For the foregoing reasons, I would hold that the state
presented insufficient evidence of damage to support a verdict of guilt as
to the criminal damage count. I concur with the well-reasoned majority
opinion in all other respects.

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