Opinion
No. 1 CA-CR 13-0198
03-25-2014
STATE OF ARIZONA, Appellee, v. MYRON NATHAN BARLOW, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Thomas Baird Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2011-125959-001
The Honorable Phemonia L. Miller, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Thomas Baird
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
GEMMILL, Judge:
¶1 Defendant Myron Nathan Barlow timely appeals his convictions and sentences on four counts of aggravated driving or actual physical control of a vehicle while under the influence of alcohol or drugs, class 4 felonies. Barlow argues that the reasonable doubt instruction given by the court to the jury — often called the "Portillo instruction" — unconstitutionally reduced the State's burden of proof below the required standard of beyond a reasonable doubt. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶2 The Portillo instruction is based on State v. Portillo, 182 Ariz. 592, 898 P.2d 970 (1995), in which the Arizona Supreme Court expressly directed that juries in criminal prosecutions be instructed on reasonable doubt as follows:
The state has the burden of proving the defendant guilty beyond a reasonable doubt. In civil cases, it is only necessary to prove that a fact is more likely true than not or that its truth is highly probable. In criminal cases such as this, the state's proof must be more powerful than that. It must be beyond a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him/her guilty. If, on the other hand, you think there is a real possibility that he/she is not guilty, you must give him/her the benefit of the doubt and find him/her not guilty.
Id. at 596, 898 P.2d at 974.
¶3 Although the instruction given in this case complies with Portillo, Barlow claims that this instruction "diminishes and alters" the reasonable doubt standard. Our supreme court has repeatedly rejected similar constitutional (due process) challenges after the Portillo opinion. See, e.g., State v. Forde, 233 Ariz. 543, 565, ¶ 86, 315, P.3d 1200, 1222 (2014); State v. Dann, 220 Ariz. 351, 365, ¶ 65, 207 P.3d 604, 618 (2009); State v. Ellison, 213 Ariz. 116, 133, ¶ 63, 140 P.3d 899, 916 (2006); State v. Lamar, 205 Ariz. 431, 441, ¶ 49, 72 P.3d 831, 841 (2003). As the intermediate court of appeals, we are bound by the decisions of the Arizona Supreme Court and have no power to contradict its rulings. See State v. Smyers, 207 Ariz. 314, 318, n. 4, 86 P.3d 370, 374, n. 4 (2004); State v. Garcia, 220 Ariz. 49, 51, ¶ 8, 202 P.3d 514, 516 (App. 2008).
¶4 Because the trial court properly gave the Portillo instruction regarding reasonable doubt, we affirm Barlow's convictions and sentences.