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State v. Dagnino

Court of Appeals of Arizona, First Division, Department E

August 13, 2013

STATE OF ARIZONA, Appellee,
v.
JESSIE DAGNINO, Appellant.

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County Cause No. CR2011-103546-001 The Honorable Sherry K. Stephens, Judge

Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel, Criminal Appeals and Jana Zinman, Assistant Attorney General Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender Phoenix By Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant.

MEMORANDUM DECISION

PATRICIA K. NORRIS, Judge.

¶1 Jessie Dagnino appeals his conviction and sentence for unlawful flight from a law enforcement vehicle.[1] On appeal he argues the superior court abused its discretion in refusing to give a lesser-included offense instruction on failure to yield. We disagree, and therefore, affirm his conviction and sentence for unlawful flight.

FACTS AND PROCEDURAL BACKGROUND[2]

¶2 On January 20, 2011, at 9:20 P.M., a police officer on patrol attempted to stop Dagnino for traffic violations after observing he had "rolled through the red light" while making a right turn, and entered the middle lane -- rather than the immediate curb lane -- of a three-lane road. While following Dagnino in a fully marked police car, the officer activated first his car's overhead emergency lights and then its siren, but Dagnino did not slow down or stop. After approximately a quarter mile, the officer temporarily ended the pursuit to determine the car's registered address.

¶3 The officer eventually located Dagnino and his car, and subsequently found drugs in the car. After the officer read Dagnino his Miranda rights, Dagnino admitted he had seen the emergency lights and heard the siren, but had not stopped because he did not want to "get into trouble" for the drugs in his car.

¶4 A grand jury indicted Dagnino for unlawful flight from a law enforcement vehicle, a class five felony. At trial, the superior court denied Dagnino's request for a lesser-included offense instruction on the offense of failure to yield. After the jury found Dagnino guilty of unlawful flight, the court sentenced him to a prison term on this count.

DISCUSSION

¶5 An offense is a lesser-included offense when "the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense." State v. Brown, 195 Ariz. 206, 207, ¶ 5, 986 P.2d 239, 240 (App. 1999) (quoting State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, 12, 965 P.2d 94, 97 (App. 1998)). Dagnino argues that under the charging documents test, [3] the superior court should have instructed the jury on failure to yield as a lesser-included offense of unlawful flight. We disagree; the superior court did not abuse its discretion in denying Dagnino's request for a lesser-included offense instruction.[4] State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005) (appellate court reviews superior court's refusal to give jury instruction for abuse of discretion).

¶6 The unlawful flight statute, Arizona Revised Statute ("A.R.S.") section 28-622.01 (2012), states:

A driver of a motor vehicle who willfully flees or attempts to elude a pursuing official law enforcement vehicle that is being operated in the manner described in ยง 28-624, subsection C is guilty of a class 5 felony. The law enforcement vehicle shall be ...

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