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following Brito to reject defendant's argument that the given admonitions, which mirrored ones given to Valenzuela, misstated the implied consent statute
Summary of this case from State v. ValenzuelaOpinion
No. 2 CA-CR 2014-0359
08-18-2015
THE STATE OF ARIZONA, Appellee, v. THOMAS LEE OLIVER, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Joy Athena, Interim Pima County Legal Defender By Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
No. CR20134619001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee
Joy Athena, Interim Pima County Legal Defender
By Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Miller authored the decision of the Court, in which Judge Espinosa concurred and Chief Judge Eckerstrom dissented. MILLER, Presiding Judge:
¶1 Following a jury trial, Thomas Oliver was convicted of driving while under the influence of alcohol (DUI) and extreme driving while under the influence of alcohol (extreme DUI). The trial court sentenced him to concurrent, 120-day jail terms. On appeal, Oliver argues the trial court erred by denying his motion to suppress the results of breath tests because the admonitions read to him from the implied consent or "admin per se" affidavit rendered his consent to submit to the tests involuntary. Specifically, he contends the officer who obtained his consent threatened him with suspension of his license, the admonitions given were inconsistent with the implied consent statute, and the officer erroneously told Oliver he was required to submit to the tests. Oliver also maintains the court erred by instructing the jury that the statutory presumption of intoxication was a rebuttable presumption. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Oliver's convictions and sentences. See State v. Sarullo, 219 Ariz. 431, ¶ 2, 199 P.3d 686, 688 (App. 2008). On a morning in October 2013, Oliver was involved in a traffic collision in Tucson. Tucson Police Department officers responded to the scene of the collision and spoke with Oliver. Because he exhibited signs of impairment, Officer Sonja Hudson performed field sobriety tests, and then gave Oliver the Miranda warnings and took him to the police substation. At the station, she read the admonitions from the admin per se affidavit and asked him to submit to breath tests. Oliver agreed to the tests, which measured his breath alcohol concentration at .181 and .179.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶3 Oliver was charged with one count each of criminal damage, DUI, and extreme DUI. Before trial, he filed a motion to suppress statements and evidence obtained as a result of "coerced 'consent'" to the breath tests, which the trial court denied. The jury acquitted Oliver of the criminal damage charge and found him guilty of the DUI charges. The trial court sentenced him as described above, and Oliver timely appealed. After the parties filed their briefs, we decided State v. Valenzuela, 237 Ariz. 307, 350 P.3d 811 (App. 2015). We directed the parties to submit supplemental briefing on the effect, if any, of our decision in Valenzuela on the issues presented in this case.
Admin Per Se Admonitions
Fourth Amendment Issues
¶4 Oliver argues the trial court erred by denying his motion to suppress because his consent to the breath tests was involuntary. "We review the trial court's denial of a motion to suppress evidence for an abuse of discretion," deferring to the court's factual findings. State v. Jacot, 235 Ariz. 224, ¶ 9, 330 P.3d 981, 984 (App. 2014). "[W]e look only to the evidence presented at the suppression hearing and view it in the light most favorable to sustaining the court's ruling." State v. Brown, 233 Ariz. 153, ¶ 4, 310 P.3d 29, 32 (App. 2013). We review the court's legal conclusions de novo. State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1200 (App. 2011).
¶5 Arizona's implied consent statute, A.R.S. § 28-1321, provides, in relevant part, "A person who operates a motor vehicle in this state gives consent . . . to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration" if the person is arrested for driving under the influence and "a law enforcement officer ha[s] reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle" while under the influence of alcohol. § 28-1321(A). The statute further provides that a driver "shall be requested to submit to and successfully complete" a test, and if the driver refuses, he "shall be informed that [his] license or permit to drive will be suspended or denied for twelve months . . . unless [he] expressly agrees to submit to and successfully completes the test or tests." § 28-1321(B). If a person refuses to submit to a test, it "shall not be given" unless the officer obtains a search warrant or another exception applies. § 28-1321(D).
¶6 A test administered pursuant to the implied consent statute is a search subject to the Fourth Amendment's constraints. State v. Butler, 232 Ariz. 84, ¶ 10, 302 P.3d 609, 612 (2013). Warrantless searches are generally "'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332, 338 (2009), quoting Katz v. United States, 389 U.S. 347, 357 (1967). Voluntary consent is one such exception. Butler, 232 Ariz. 84, ¶ 13, 302 P.3d at 612. "Voluntariness is assessed from the totality of the circumstances." Id.
¶7 Oliver argues that the "repeated admonitions that [he] was 'required' to 'submit' to the test in the context of the criminal investigation . . . rendered his consent involuntary." He claims that "by incorrectly admonishing [him] four times that he was 'required' to submit to the test . . . , Officer Hudson effectively impressed on [Oliver] her authority to conduct a warrantless search, which she was not authorized to do under the law." Thus, he maintains, his consent was involuntary and the tests violated his Fourth Amendment rights.
Oliver also suggests his consent was involuntary because Hudson did not inform him that he had "the constitutional right to refuse the test." But, as we noted in Valenzuela, the Supreme Court in Schneckloth rejected an argument that police must give a Miranda-style warning of the right to refuse consent because "knowledge of a right to refuse is not 'an indispensable element of a valid consent' to a search." 237 Ariz. 307, ¶ 29, 350 P.3d at 819, quoting Schneckloth v. Bustamonte, 412 U.S. 218, 246 (1973).
¶8 Hudson testified at the suppression hearing that she had read the admonitions verbatim from the admin per se affidavit, which was admitted into evidence. The admonitions read, in relevant part, as follows:
Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content. The law enforcement officer may require you to submit to two or more tests. You are required to successfully complete each of the tests.
. . . .
If you refuse to submit or do not successfully complete the specified tests, your Arizona driving privilege will be suspended for 12 months . . . . You are, therefore, required to submit to the specified tests.
¶9 Oliver argued at the hearing that he had been coerced into consenting to the breath tests because the admonitions did not accurately reflect the law. In particular, he argued that the admonitions did not mention that Oliver had the option of declining to submit to the breath tests, in which case the state would be required to obtain a warrant to conduct the tests. The trial court denied the suppression motion, finding Oliver had been "given the implied consent and it correctly states what Arizona law requires as far as you keeping your right to drive," and that "nothing about what was done in the case . . . made the test involuntary."
¶10 In Valenzuela, we considered the same constitutional challenge Oliver raises. In that case, the defendant argued the phrase "Arizona law requires you to submit" in his admin per se admonition "renders any consent involuntary because it was secured under the claim of lawful authority." 237 Ariz. 307, ¶ 11, 350 P.3d at 815. We concluded that phrase did not render Valenzuela's consent to a blood test involuntary. Id. ¶ 13. In so concluding, we distinguished Bumper v. North Carolina, 391 U.S. 543 (1968), cited by both Valenzuela and Oliver. See Valenzuela, 237 Ariz. 307, ¶¶ 12-13, 350 P.3d at 815. In Bumper, the Supreme Court considered "whether a search can be justified as lawful on the basis of consent when that 'consent' has been given only after the official conducting the search has asserted that he possesses a warrant." 391 U.S. at 548. The Court stated, "When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent." Id. at 550. In Valenzuela, we concluded that coercion was not present because drivers in Arizona may refuse a warrantless search and the implied consent statute informs drivers that they have a choice whether to submit to testing. Valenzuela, 237 Ariz. 307, ¶ 13, 350 P.3d at 815.
¶11 We also rejected "a 'categorical rule' that 'reasonable persons do not—and should not—believe themselves free to decline an officer's demand that they follow the requirements of the law,'" which would foreclose a totality of the circumstances analysis of the voluntariness of consent. Id. ¶ 20. We approved the reasoning of other courts that have considered similar issues. In State v. Brooks, 838 N.W.2d 563, 571 (Minn. 2013), the Minnesota Supreme Court observed that Minnesota drivers have a right to refuse testing, and if a driver refuses the test, the police are required to honor that refusal and not perform the test. As we did in Valenzuela, 237 Ariz. 307, ¶ 13, 250 P.3d at 815, the Brooks court distinguished Bumper on that basis, and concluded, based on the totality of the circumstances, that the defendant had voluntarily consented to blood and urine testing, Brooks, 838 N.W.2d at 572.
¶12 In State v. Smith, 849 N.W.2d 599, 605-06 (N.D. 2014), the North Dakota Supreme Court concluded that the driver's consent was not coerced because he had been correctly advised that the law required him to submit to a chemical breath test and that refusal is a crime that could result in revocation of his driving privileges. The court reasoned that, because the driver was "presented with the choice of either ratifying or withdrawing his implied consent" and agreed to take the test, his consent was voluntary. Id. In Valenzuela, we approved the summary of the Smith court's reasoning embodied in the special concurrence, which stated, "'While the voluntariness of consent is decided from the totality of the circumstances, submitting to a blood alcohol test is not rendered involuntary merely by an officer fairly giving the implied consent advisory including the criminal penalty for refusing to take the test.'" Valenzuela, 237 Ariz. 307, ¶ 23, 250 P.3d at 817, quoting Smith, 849 N.W.2d at 606-07.
¶13 The analysis in Valenzuela controls the constitutional question Oliver presents. Like the state statutes in Brooks and Smith, § 28-1321 gives drivers the power to refuse to submit to testing, albeit with consequences. As we explain below, the fact that negative consequences attach to a driver's refusal to submit to testing does not amount to coercion. We conclude the admonition "Arizona law requires you to submit" did not render Oliver's consent to the breath tests involuntary.
¶14 Oliver argues in his supplemental brief that, to the extent the Valenzuela decision rested on the fact that the admonitions were not admitted into evidence, it is inapplicable to this case. But the absence of the full admonitions was not dispositive in Valenzuela. The critical phrase—"Arizona law requires you to submit"—was present in the admonitions given in both cases. See id. ¶ 11. Indeed, we stated, "to the extent that Valenzuela's principal argument begins and ends with the first sentence of what he contends are the admonition's fatally irrevocable words, the form itself is unnecessary to our consideration of his arguments." Id. ¶ 10. Thus, we did not need the full admonitions to evaluate whether the phrase "Arizona law requires you to submit" is unconstitutionally coercive.
¶15 Oliver contends that, because "the full Admonitions given in [this] case contained not just [the 'Arizona law requires you to submit'] directive given once in a single phrase, but four variations of it stressed repeatedly throughout the Admonitions," the "full Admonitions are arguably four times as coercive as the Admonition at issue in Valenzuela." Oliver cites no authority for this proposition. Moreover, if the phrase is coercive, it does not become more coercive simply because it is uttered more than once. Conversely, if it is not coercive, it does not become coercive merely because it is repeated. We conclude Valenzuela applies here.
The dissent in Valenzuela also noted that the admonitions repeated "no less than four times" that "submission to the search is 'required.'" Id. ¶ 37. --------
¶16 Oliver also argues "the threat to suspend [his] driving privilege in the Admonitions was coercive as regards the criminal prosecution." We addressed a similar argument in Valenzuela, in which the defendant argued he should have been asked whether he consented to testing before being warned about the civil penalties that would result if he refused. Id. ¶ 16. We found persuasive the reasoning of the Oregon Supreme Court, which stated,
[I]t is difficult to see why the disclosure of accurate information about a particular penalty that may be imposed—if it is permissible for the state to impose that penalty—could be unconstitutionally coercive. Rather, advising a defendant of the lawful consequences that may flow from his or her decision to engage in a certain behavior ensures that that defendant makes an informed choice whether to engage in that behavior or not.Id., quoting State v. Moore, 318 P.3d 1133, 1138 (Or. 2013) (alteration in Valenzuela).
¶17 Oliver cites Garrity v. New Jersey, 385 U.S. 493 (1967), for the proposition that "the consent gained as a result of [the threat of license suspension] was insufficient for use of the test results in the criminal prosecution under Fourth and Fifth Amendments and Art. II, § 8 and § 10 [of the Arizona Constitution]." In that case, police officers under investigation by the New Jersey Attorney General were warned that they could refuse to answer questions if the answers would tend to incriminate them, but if they refused, they would be subject to removal from office. Id. at 494. The officers answered questions, and some of the answers were later used against them in prosecutions for conspiracy. Id. at 495. The Supreme Court stated, "The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent." Id. at 497. Thus, the Court concluded the officers' statements were not voluntary and were obtained in violation of the Fifth and Fourteenth Amendments. Id. at 497-98.
¶18 Garrity was decided under the Fifth Amendment's privilege against self-incrimination, id. at 496-97, whereas Oliver's argument is based on the Fourth Amendment's protection against unreasonable searches. We have found no Arizona case, and Oliver cites none, in which a court applied Garrity in the implied consent context. We decline to apply the reasoning of Garrity to this case.
¶19 The Supreme Court has more directly addressed the question Oliver raises, albeit in the Fifth Amendment context. In South Dakota v. Neville, 459 U.S. 553, 559-60 (1983), the Court considered South Dakota's implied consent statute, which permitted drivers to refuse testing but authorized suspension of the driver's license and allowed the refusal to be used against the driver at trial. The Court stated, "[T]he values behind the Fifth Amendment are not hindered when the state offers a suspect the choice of submitting to the blood-alcohol test or having his refusal used against him." Id. at 563. Observing that the state had not "subtly coerced [the defendant] into choosing the option it had no right to compel, rather than offering a true choice," the Court recognized that the choice to submit or refuse to take a test "will not be an easy or pleasant one for a suspect to make," but "the criminal process often requires suspects and defendants to make difficult choices." Id. at 563-64. Thus, the Court held, "a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination." Id. at 564.
¶20 Courts from other states have addressed similar questions. In Moore, the defendant argued his consent to blood and urine testing was involuntary because it was obtained after he had been warned of the legal consequences he would suffer if he refused testing. 318 P.3d at 1134. The Oregon Supreme Court concluded the defendant was not coerced by the statement of rights and consequences the officer read to him from the implied consent form before seeking consent. Id. at 1137-38. The admonitions "contained accurate statements of the lawful consequences of refusing to submit to the tests." Id. at 1140. And in Brooks, the defendant argued that his consent was involuntary because the police told him if he did not consent, he would be committing a crime, and the fact that the police advised him that it is a crime to refuse the chemical tests renders any consent illegally coerced. 838 N.W.2d at 568. The Minnesota Supreme Court concluded that "a driver's decision to agree to take a test is not coerced simply because [the state] has attached the penalty of making it a crime to refuse the tests." Id. at 570; see also People v. Harris, 184 Cal. Rptr. 3d 198, 211 (Ct. App. 2015) ("The fact that a motorist is told he will face serious consequences if he refuses to submit to a blood test does not, in itself, mean that his submission was coerced."); Walters v. State ex rel. Wyo. Dep't of Transp., 300 P.3d 879, 883 (Wyo. 2013) ("Explaining the consequences of [the] choice as to whether to take the test may or may not have pressured [the driver] in some sense, but providing accurate information did not rise to a level of coercion which would render [his] consent involuntary.").
¶21 The same reasoning applies here. Although our legislature has attached consequences to a driver's refusal to submit to testing—suspension of driving privileges—that in itself does not amount to coercion that would render consent involuntary. Rather, the admonitions accurately warned Oliver of the consequences of refusing to submit to testing. We conclude the trial court did not err in concluding Oliver's consent was not coerced.
Arizona Constitution
¶22 Oliver argues that the admonition that he was required to submit to testing and the threat of license suspension compelled him to give evidence against himself in violation of article II, § 10 of the Arizona Constitution. But our supreme court held in State v. Berg, 76 Ariz. 96, 259 P.2d 261 (1953), that the protection in article II, § 10 was "limited primarily to testimonial compulsion." Id. at 99, 259 P.2d at 263, overruled in part on other grounds by State v. Pina, 94 Ariz. 243, 383 P.2d 167 (1963). It therefore does not apply to breath test results. And in State v. White, 102 Ariz. 162, 163, 426 P.2d 796, 797 (1967), our supreme court rejected an argument that article II, § 10 "affords the accused in a criminal case more protection than the federal constitution," stating, "The variations of wording in the federal and state constitutions do not lead to different interpretations of the principle." We conclude the Arizona constitution does not compel a different result than the one we reach under federal constitutional jurisprudence.
Accuracy of Admonitions
¶23 Oliver additionally argues, as he did below, that "[t]he State failed to prove that [his] consent was voluntary when it was a product of police 'admonitions' that did not reflect the law." He emphasizes that the statute specifies that a driver "shall be requested to submit to" a test, while the admonitions "inaccurately told [him] that 'Arizona law requires you to submit to' the test."
¶24 In State v. Brito, 183 Ariz. 535, 538, 905 P.2d 544, 547 (App. 1995), the defendant made the same argument Oliver makes: that the implied consent affidavit "misstates the law because the statute does not 'require' a person to submit to a test." In that case, we noted that Arizona cases have interpreted the statute as requiring drivers to submit to testing. Id. at 538-39, 905 P.2d at 547-48. Specifically, in Edwards v. Arizona Department of Transportation, 176 Ariz. 137, 140, 859 P.2d 760, 763 (App. 1993), we concluded the implied consent warning was not "legally incorrect." And in Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685, 689 (1971), our supreme court held that it is "reasonable under the circumstances to require a person to submit to a chemical test of his blood, breath or urine if arrested for driving while intoxicated or face . . . suspension of his driver's license." Thus, we concluded in Brito that the implied consent warning did not misstate the law. 183 Ariz. at 539, 905 P.2d at 548.
¶25 In addition, nothing in § 28-1321 requires that the admonitions exactly match the statutory language. More importantly, the statute does not mandate that officers inform drivers that they may refuse the test; instead, it requires officers to "request[]" that drivers submit to testing. § 28-1321(B). If the driver then refuses, the officer must inform the driver that his or her license will be suspended unless he or she "expressly agrees to submit to and successfully completes the test or tests." Id. Taken as a whole, the admonitions accurately reflect the implied consent law. In particular, the admonitions require police to ask the driver if he or she will submit to the tests. If there were no option to refuse, that question would be unnecessary. In addition, the admonitions specify the consequences of refusing to submit. This implies the driver has the power to refuse testing. We conclude the admonitions given to Oliver were consistent with the implied consent statute.
Totality of the Circumstances
¶26 Finally, we consider whether, based on the totality of the circumstances, Oliver's consent to the breath tests was voluntary. See Butler, 232 Ariz. 84, ¶¶ 18-20, 302 P.3d at 613-14. At the suppression hearing, the trial court determined Oliver was given the admin per se admonitions and they correctly stated what Arizona law requires. The court also concluded that "nothing about what was done . . . made the test involuntary," specifically noting that Oliver was not intimidated or misled.
¶27 There is no dispute that Hudson read the admin per se admonitions to Oliver. Although Oliver was not informed he had the power to refuse to submit to testing, the Supreme Court has concluded that knowledge of a right to refuse is not "an indispensable element of a valid consent" to a search. Schneckloth, 412 U.S. at 246. Moreover, the trial court could take into account factors such as Oliver's age, level of education, and demeanor and emotional state during his detention in determining the voluntariness of his consent. See Valenzuela, 237 Ariz. 307, ¶ 30, 350 P.3d at 819. The evidence at the suppression hearing established that Oliver had seemed upset and frustrated while he was detained but was cooperative. Hudson testified that Oliver had not seemed nervous or intimidated and had not been combative or argumentative. She also testified he had been "very cooperative and understanding" when she read the admin per se affidavit to him, asking no questions about the affidavit or implied consent and not hesitating in agreeing to submit to testing.
¶28 Although the trial court did not explicitly address particular factors of the totality of the circumstances analysis in its ruling, it allowed testimony regarding Oliver's demeanor, as it related to "voluntariness and you need to take a look at the totality of the circumstances." The court also asked Hudson if she had determined Oliver's age and level of education, indicating the court considered relevant factors in evaluating the totality of the circumstances. We conclude the court did not err in concluding that Oliver voluntarily consented to the breath tests.
Intoxication Presumption Instruction
¶29 Oliver next argues the trial court's characterization of the statutory presumption of intoxication as "rebuttable" was erroneous. He contends "the inclusion of the word 'rebuttable' implies that unless the defendant offers evidence in rebuttal, the presumption automatically follows." We review a trial court's decision to give a particular instruction for an abuse of discretion. See State v. Johnson, 205 Ariz. 413, ¶ 10, 72 P.3d 343, 347 (App. 2003). "We review de novo whether jury instructions correctly state the law, 'read[ing] the jury instructions as a whole to ensure that the jury receives the information it needs to arrive at a legally correct decision.'" State v. Prince, 226 Ariz. 516, ¶ 77, 250 P.3d 1145, 1165 (2011), quoting State ex rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8, 123 P.3d 662, 665 (2005) (alteration in Prince) (citation omitted).
¶30 When the trial court and the parties were settling final jury instructions, Oliver objected to the court's use of the word "rebuttable" in the intoxication presumption instruction. Arguing that "'rebuttable' implies that the burden is on [him] to rebut [the] presumption," he requested that the court use the word "permissive" instead of "rebuttable." The court stated it believed the statute used the word "rebuttable," but Oliver pointed out that the statute "seems to be silent on the word." The court stated, "[I]t means the same thing, whether it's rebuttable/permissive" and gave the instruction "as is."
¶31 The instruction the court gave stated, in relevant part, that if there was "0.08 percent or more by concentration of alcohol in the defendant's blood, it may be presumed that the defendant was under the influence of intoxicating liquor." The instruction further stated the presumption was "rebuttable," which meant the jury was "free to accept or reject these presumptions after considering all the facts and circumstances of the case." The instruction also explained that, even with the presumption, "the state has the burden of proving each and every element of the offense of driving under the influence beyond a reasonable doubt before you can find the defendant guilty."
¶32 "Permissive inferences that the trier of fact may freely disregard are acceptable, if reasonable, as they do not shift the burden of proof or the burden of persuasion." Norton v. Superior Court, 171 Ariz. 155, 158, 829 P.2d 345, 348 (App. 1992). Here, although the trial court used the word "rebuttable," the instruction was functionally a permissive inference instruction because it stated the jury may find the presumption and was "free to accept or reject" it. The instruction did not place any burden on the defendant. See State v. Seyrafi, 201 Ariz. 147, ¶ 9, 32 P.3d 430, 433 (App. 2001) (permissive inference "allows the trier of fact to infer the presumed fact from proof of the basic facts, but places no burden of any kind on the defendant"). In addition, there is no reason to believe the jury would have ignored the court's explanation of the meaning of "rebuttable" in favor of the dictionary definition of "rebut," as Oliver argues. See State v. Newell, 212 Ariz. 389, ¶ 69, 132 P.3d 833, 847 (2006) (jurors presumed to follow court's instructions). We conclude the instruction was not erroneous.
Disposition
¶33 For the foregoing reasons, Oliver's convictions and sentences are affirmed. ECKERSTROM, Chief Judge, dissenting:
¶34 For the reasons stated in my dissent in Valenzuela, 237 Ariz. 307, ¶¶ 36-58, 350 P.3d at 820-25, I also respectfully dissent from the analysis here.