State v. Waldrup

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

BOB HOLT WALDRUP, Appellant.

No. 1 CA-CR 20-0007
FILED 02-04-2021

Appeal from the Superior Court in Mohave County
No. S8015CR201900938

The Honorable Douglas R. Camacho, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Brian R. Coffman
Counsel for Appellee

By Harriette P. Levitt, Tucson
Counsel for Appellant
 STATE v. WALDRUP
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Bob Holt Waldrup appeals his convictions and sentences for
four counts of driving while under the influence. For the following reasons,
we affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Officer Richard Castillo was dispatched to a restaurant to
answer a call for a welfare check of a man sitting in a vehicle. The vehicle
was parked askew in an accessible parking spot. At Castillo’s request, the
man produced an ID, identifying him as Waldrup. A records check revealed
that Waldrup’s license was suspended, and he was required to have an
ignition interlock device attached to his vehicle. The officer observed the
keys in the ignition, and a review of the officer’s body camera footage
showed there was no ignition interlock device installed.

¶3 Officer Dylan Teschler arrived to help Castillo. Teschler
noticed that Waldrup had “red bloodshot watery eyes and slow slurred
speech.” Waldrup told Teschler that he had been at two bars, explaining
that he had three pints of beer at one and two at the other. The bars closed
at 2:00 a.m., and Waldrup had a receipt from the restaurant timed at 4:44
a.m. The bars were approximately a mile from the restaurant.

¶4 Waldrup told the officers that a friend had driven him to the
restaurant and gave the friend’s first and last name. The officers asked for
the friend’s location and contact information. Waldrup could not provide
it, and the officers could not find the name in their database. Asked where
he was headed next, Waldrup said he wanted to go to a third bar, about a
half-mile away.

1 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Waldrup. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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¶5 Teschler asked Waldrup to submit to a field sobriety test to
measure his balance and coordination. Waldrup refused but submitted to a
horizontal gaze nystagmus test. Based on that test, the officers concluded
that Waldrup was intoxicated and arrested him. A subsequent blood test
determined that Waldrup’s blood-alcohol level was 0.110.

¶6 The State charged Waldrup as follows: Count 1: “aggravated
driving a vehicle while under the influence of intoxicating liquor”; Count 2:
“aggravated driving a vehicle under the influence of intoxicating liquor
while required to equip [the] vehicle with an ignition interlock device”;
Count 3: “aggravated driving a vehicle while under the influence of
intoxicating liquor with an alcohol concentration of .08 or more”; and
Count 4: “aggravated driving a vehicle while under the influence of
intoxicating liquor with an alcohol concentration of .08 or more while
required to equip [the] vehicle with an ignition interlock device.” In Counts
2 and 4, but not Counts 1 and 3, the State alternatively alleged actual
physical control.

¶7 During closing arguments, the State argued that there was no
evidence that Waldrup had a friend drive him to the restaurant because
Waldrup did not provide the friend’s contact information, the officers could
not verify the friend’s existence, and the defense did not call the friend as a
witness. The State told the jurors that they could find that Waldrup, not a
friend, drove from the second bar to the restaurant. During the arguments,
Waldrup argued he did not have actual physical control over the vehicle at
the restaurant parking lot, and the State argued he did.

¶8 The jurors convicted Waldrup on all counts. The verdicts
declared Waldrup guilty of each count for either driving, or alternatively,
having actual physical control of the vehicle. The superior court sentenced
Waldrup to concurrent, mitigated one-year terms of imprisonment on each
count and ordered him to pay the mandatory fines and fees totaling $4637.

¶9 Waldrup appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1) and Article VI, Section 9 of the
Arizona Constitution.

DISCUSSION

¶10 Waldrup argues that his convictions for actual physical
control under Counts 1 and 3 were error because the indictment for those
counts alleged driving and not actual physical control. Specifically, he
claims the convictions on Counts 1 and 3 were based on (1) duplicitous
charges; (2) offenses for which he was not charged; and (3) insufficient

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evidence of driving. He further maintains that there was insufficient
evidence of actual physical control over the vehicle for all counts, and the
prosecutor engaged in error.2

¶11 Because Waldrup did not object to amending the indictment
to include actual physical control in Counts 1 and 3 at or before trial, we
review for fundamental error. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12
(2018) (“Because Escalante did not object to this evidence, we will not
reverse unless the court committed error that was both fundamental and
prejudicial.”). Under fundamental-error review, a defendant must show:
(1) there was an error, (2) under the totality of the circumstances, the error
was fundamental, and (3) the defendant was prejudiced by the error. Id. at
142, ¶ 21.

A. The Superior Court Erred by Failing to Require a Verdict That
Unanimously Found That Waldrup Committed One of Two Criminal
Acts.

¶12 Waldrup argues that the State subjected him to duplicitous
charges by alleging one criminal charge in the indictment and multiple
criminal acts to prove the charge. State v. Klokic, 219 Ariz. 241, 244, ¶ 12
(App. 2008) (noting that this disparity is a “duplicitous charge”).
Specifically, he argues that he was convicted of either driving to the
restaurant or having actual physical control of the vehicle while parked at
the restaurant. Without the jury precisely determining which act supported
his convictions, he claims he was denied the right to a unanimous jury
verdict.

¶13 In Klokic, the indictment charged that the defendant used a
handgun to place the victim in reasonable apprehension of physical injury.
219 Ariz. at 242, ¶ 5. At trial, the State argued that a driving defendant
pointed his gun at another driver. Id. at 242–43, ¶¶ 3–6. Later, after both
drivers exited their vehicles, the defendant pointed his gun at the other
driver again. Id. The defendant denied both allegations but alternatively
argued that he acted in self-defense and in defense of his passenger in the
first incident because the victim threw a bottle at his car. For the second

2 Waldrup uses the term “misconduct,” but alleges only prosecutorial
error. Our supreme court instructed courts to distinguish between the two.
See In re Martinez, 248 Ariz. 458, 470, ¶ 47 (2020).

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incident, the defendant again argued defense of others because the victim
approached him and his passenger with a wrench. Id. at 243, ¶ 8.

¶14 To prove one charge of aggravated assault, the State
introduced evidence of both incidents and told the jurors that they could
convict him for either. Klokic, 219 Ariz. at 242–43, ¶ 6. This court
acknowledged that both acts “may have caused only one instance of
apprehension of imminent physical injury in the victim that endured
throughout his encounter with the defendant.” Id. at 247, ¶ 28.
Nevertheless, the court concluded that because the jury may not have
unanimously rejected either of the defendant’s defenses, the two acts were
not part of the same criminal transaction. Id. at ¶ 32 (“[E]ven when both
events occur as part of a larger criminal episode, acts may not be considered
part of the same criminal transaction if the defendant offers different
defenses to each act or there is otherwise a reasonable basis for
distinguishing between them.”).

¶15 However, different defenses do not always form a reasonable
basis for distinguishing between acts when determining whether a jury
verdict was unanimous. In State v. West, the defendant was charged with
child abuse under A.R.S. § 13-3623. 238 Ariz. 482, 486, ¶ 4 (App. 2015). Per
the statute, the indictment alleged that the defendant committed child
abuse under three theories: she “intentionally or knowingly caus[ed]
physical injury”; she “caus[ed] or permit[ed]” the injury; or she “caus[ed]
or permit[ed] [the victim] . . . to be placed in a situation where her health
was endangered.” Id. at 491, ¶ 25. Citing to Klokic, West argued that she was
entitled to a unanimous verdict regarding one of the three theories
presented in the indictment. Id. at 492–93, ¶ 31. This court concluded that
Klokic did not apply because A.R.S. § 13-3623 is an alternative-means
statute, under which a defendant may be convicted without unanimous
acceptance of any one theory of the case provided there is unanimity
regarding the offense committed. Id. at 492–96, ¶¶ 34–46. In rejecting West’s
claim, the court noted that Klokic’s multiple-acts analysis could apply to an
alternative-means statute if the State “charges the defendant with one
offense . . . “and then alleges multiple, distinct acts as to the separate
means.” Id. at 494, ¶ 40.

¶16 Attempting to avoid its error here, the State cites State v.
Rivera, 207 Ariz. 69 (App. 2004), and argues that because A.R.S. § 28-1381 is
an alternative-means statute, Klokic’s multiple-acts analysis is inapplicable.
Rivera does not help the State’s cause. In Rivera, an intoxicated defendant
left a car that had veered off the road and onto a raised median. 207 Ariz.
at 71, ¶ 2. The State charged the defendant with DUI under A.R.S.

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§ 28-1381(A). Id. at ¶ 3. The defendant was convicted on the alternative
theories that he either drove the vehicle or temporarily assumed actual
physical control from the passenger’s seat by seizing the steering wheel
from his girlfriend. The verdict did not specify which theory supported the
conviction. Id. at ¶ 6. This court concluded that because A.R.S. § 28-1381 is
an alternative-means statute, the jurors did not have to agree whether the
defendant drove or assumed the vehicle’s actual physical control. Id. at 71,
¶¶ 6, 10. But in Rivera, the State alleged different means by which the
defendant might have committed only one act, not the “multiple, distinct
acts as to the separate means” contemplated in Klokic and West. West, 238
Ariz. at 494, ¶ 40. By contrast, here, the State argued at trial that Waldrup
first drove from the bar to the restaurant, left the car and entered the
restaurant, remained at the restaurant “for quite some time,” and then
returned to his vehicle. Rivera does not control under these facts.

¶17 Citing to State v. Nevins, the State also argues the trial
evidence does not show that Waldrup remained outside of his car for a
significant amount of time. 2 CA-CR 2017-0339, 2018 WL 3301554, at *1, ¶ 5
(Ariz. App. July 5, 2018) (mem. decision). There, the court affirmed the
conviction of a defendant charged with driving or having actual physical
control immediately upon parking. Id. But Nevins is not analogous to this
case.

¶18 There was a significant amount of time between the two
alleged acts here. The bar Waldrup left closed at 2:00 a.m., and receipts
showed he paid at the restaurant at 4:44 a.m. The bar he left was a half-mile
to a mile away from the restaurant. It is possible that Waldrup remained in
his car for some time after leaving the bar and before he was discovered by
officers that morning. Nonetheless, there was a substantial period when he
was neither driving nor in actual physical control of the vehicle. Waldrup’s
driving the vehicle to the restaurant and his subsequent physical control of
the vehicle after the restaurant were two separate acts.

¶19 Throughout these events, except for the time he was in the
restaurant eating, Waldrup would have met the elements of either driving
or actual physical control under A.R.S. § 28-1381. Because Waldrup stopped
at the restaurant in between these events, the State could have charged
Waldrup with DUI for each period. Thus, Klokic’s multiple-acts analysis
applies. See, e.g., State v. Tran, 2 CA-CR 2013-0487, 2014 WL 4755565, at *1,
¶¶ 2–5 (Ariz. App. Sept. 24, 2014) (mem. decision) (applying Klokic when
defendant argued he was not the driver who crashed a vehicle and got out
to apologize and was not in actual physical control of the vehicle when he
re-entered it to drive away).

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¶20 Moreover, because Waldrup had separate defenses for both
the driving and actual physical control allegations, there was sufficient
reason to conclude that the two acts were not a part of the same criminal
transaction. Thus, Waldrup was entitled to a unanimous verdict on one act
or the other, either through jury instructions that required unanimity on a
specific act or an indication by the State that only one act constituted the
crime.

B. Because the Jurors May Not Have Rendered a Unanimous Verdict
Based on the Evidence, Arguments, and Instructions Presented, the
Error Was Fundamental.

¶21 The State argues that it sought to prove only actual physical
control at trial. It made several comments to indicate this throughout the
trial. During its opening statement, the State said,

Ladies and gentlemen of the jury, this case is about driving
under the influence, also commonly referred to as a DUI.
However, it’s not your typical DUI case. This case falls under
a particular category of DUI known as actual physical control.

You’re not going to hear testimony or have direct evidence of
driving, but you will hear about the circumstances in which
the defendant, Bob Waldrup, had actual physical control of
his vehicle while he was under the influence of an intoxicating
liquor.

On rebuttal argument, the State argued that the case “really comes down to
actual physical control” and closed with:

Ladies and gentlemen of the jury, you should find beyond a
reasonable doubt because you should be firmly convinced
that Bob Waldrup had actual physical control of his vehicle
without a certified ignition interlock device while his driver’s
license was suspended while he was under the influence of
alcohol or while his blood alcohol concentration level was
above a .08. Thank you.

¶22 However, the State introduced testimony from Castillo that
challenged Waldrup’s account to the officers that he was driven to the
restaurant by a friend. In its closing arguments, the State again noted the
lack of evidence that Waldrup was driven by a friend and invited the jury
to infer that Waldrup drove from the bar to the restaurant:

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He then arrived at Denny’s, and he told Officer Teschler he
got to Denny’s because a friend of his, Angel, drove him, but
there’s no evidence of Angel. She didn’t testify in front of you
today. She wasn’t called as a witness.

* * *

Officer Teschler asked Bob Waldrup, hey, how can I get a hold
of Angel? How can we find out that she was the one who
drove you from McKee’s Pub and Grill down to the Denny’s?
How do we get a hold of her?

No good answer. No way to contact her. No address. No
known location. You may infer that it wasn’t Angel who was
driving but rather it was Bob from McKee’s down to Denny’s.
Nonetheless, he did admit to drinking, and he even admitted
next he was going to go to another bar known as the Fraternal
Order of Eagles.

We recognize that the State did not argue that Waldrup’s drive from the bar
to the restaurant met any count but there was still a risk of jury confusion.
See, e.g., State v. Lerch, 2 CA-CR 2014-0225, 2016 WL 739480, at *4, ¶ 17 (Ariz.
App. Feb. 25, 2016) (mem. decision) (“Although the state never explicitly
argued that the jury could find Lerch guilty of aggravated assault based on
either act, it never clarified or explained that the assault charges were based
only on the balcony incident.” (emphasis added)). It was not disputed that
Waldrup was intoxicated after drinking at the bar, and the State attempted
to persuade the jury that Waldrup drove from that bar. Without a clarifying
instruction, the jury could have rendered a non-unanimous verdict.

C. Waldrup Has Failed to Prove Prejudice.

¶23 The State argues that a potential non-unanimous jury verdict
is insufficient to show prejudice. Alternatively, the State maintains that the
verdict would have been unanimous because any reasonable jury would
have found that Waldrup had actual physical control of the vehicle.

¶24 When a verdict may not have been unanimous, a potential
non-unanimous verdict does not create fundamental, prejudicial error if a
reasonable jury would have found beyond a reasonable doubt that either of
the incidents established the crime alleged. State v. Payne, 233 Ariz. 484, 509,
¶ 90 (2013) (“Even if an error did occur, Payne was not prejudiced—the
failure to seek medical care itself satisfied the charge, and no reasonable
jury could have found that Payne was not guilty of child abuse under this

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theory.”). Here, while the Waldrup may have argued he was not in actual
physical control of the vehicle after exiting the restaurant, the evidence is
overwhelming to the contrary. See infra ¶¶ 31–32. Therefore, we find no
prejudice resulting from the fundamental error in this case.

D. The State Did Not Violate Waldrup’s Constitutional Rights by
Convicting Him of Actual Physical Control Where the Text of the
Indictment Alleged Only Driving Under the Influence.

¶25 Waldrup argues that he was convicted on offenses for which
he was not charged. Article 2, Section 24 of the Arizona constitution grants
the accused “the right to . . . demand the nature and cause of the accusation
against him, [and] to have a copy thereof.” Likewise, Section 30 states that
“[n]o person shall be prosecuted criminally in any court of record for felony
or misdemeanor, otherwise than by information or indictment.” Ariz.
Const. art. 2, § 30. Consistent with this principle of notice, an indictment is
defined as “a plain, concise statement of the facts sufficiently definite to
inform the defendant of a charged offense.” Ariz. R. Crim. P. 13.1(a).

¶26 However, the State had no obligation to notify Waldrup in the
indictment that he would be prosecuted under a theory of actual physical
control instead of driving. See State v. Tison, 129 Ariz. 526, 538 (1981). In
Rivera, the defendant argued he was denied due process when the State
indicted him on the theory that he drove under the influence and, at the
trial, prosecuted him on the alternative theory that he was in actual physical
control of the vehicle. 207 Ariz. at 70–71, ¶ 1. This court rejected that
argument. Id. at 71–74, ¶¶ 7–15.

¶27 Waldrup was charged with both driving and having actual
physical control over the vehicle on the same date and place in Counts 2
and 4. The only other shared difference between the allegations in Counts
1 and 3 and Counts 2 and 4 was whether, during these events, he failed to
install a required interlock device. Nineteen days before trial, Waldrup was
present at an arraignment where the State indicated that “the question [for
trial] will be actual physical control” without referring to a specific charge.
Waldrup had sufficient notice to satisfy due process. See Rivera, 207 Ariz. at
73, ¶ 13.

E. There was Sufficient Evidence for a Rational Trier of Fact to Conclude
that Waldrup Had Driven or Had Actual Physical Control of the
Vehicle.

¶28 We review whether sufficient evidence supports a conviction
de novo, but we resolve conflicts in the evidence against the defendant and

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view all facts in a light supporting the verdict. State v. Pena, 235 Ariz. 277,
279, ¶ 5 (2014). Evidence presented at trial is sufficient to support a
conviction if substantial evidence supports the jury verdict. Id. (“Substantial
evidence is evidence that reasonable persons could accept as sufficient to
support a guilty verdict beyond a reasonable doubt.”) (internal quotations
omitted). “The sufficiency of the evidence must be tested against the
statutorily required elements of the offense.” State v. Pena, 209 Ariz. 503,
505, ¶ 8 (App. 2005). Here, the only disputed element is Waldrup’s alleged
driving or actual physical control of the vehicle. Because Waldrup may
have been guilty on all counts under either a theory of actual physical
control or of driving, we will affirm his conviction unless no reasonable jury
could have convicted Waldrup under either theory beyond a reasonable
doubt.

¶29 A jury could have reasonably concluded that Waldrup drove
himself to the restaurant. Through testimony by an officer, the State noted
that the vehicle was parked “askew” in the parking spot, which a jury may
reasonably infer as evidence that the driver was intoxicated. Waldrup
admitted that he previously stopped at two bars earlier in the morning
before stopping at the restaurant. Although the bars may have been only
half a mile from the restaurant, there is no dispute that Waldrup went from
the last bar to the restaurant by car. He explained that his friend Angel
drove him there, but he was unable to produce any contact information for
this person, and the police could not identify her by her first and last name.

¶30 More importantly, any jury would have reasonably
concluded that Waldrup had actual physical control of the vehicle in the
parking lot. The jury heard testimony that the keys were in the ignition,
Waldrup was in the driver’s seat, and he was awake. The evidence proves
Waldrup was in actual physical control of the vehicle. State v. Love, 182 Ariz.
324, 327 (1995) (“The totality approach permits drunk drivers to be
prosecuted under a much greater variety of situations-for example, even
when the vehicle is off the road with the engine not running.”).

F. Waldrup Was Not Denied the Right to a Fair Trial Due to
Prosecutorial Error.

¶31 Waldrup did not raise prosecutorial error in the superior
court, so we review the issue for fundamental error. State v. Prince, 226 Ariz.
516, 537, ¶ 84 (2011).

¶32 We will reverse a conviction because of prosecutorial error if:
(1) misconduct is present; and (2) a reasonable likelihood exists that the

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misconduct could have affected the jury’s verdict, thereby denying the
defendant a fair trial. State v. Smith, 250 Ariz. 69, 99, ¶ 138 (2020). To
establish prejudice, a defendant must show that a reasonable jury could
have plausibly and intelligently reached a different verdict without the
prosecutorial error. Id.; Escalante, 245 Ariz. at 144, ¶¶ 29, 31; State v. Moody,
208 Ariz. 424, 459, ¶ 145 (2004). Although a defendant must typically
establish prejudice, a “defendant claiming cumulative error based on
prosecutorial misconduct need not separately assert prejudice since a
successful claim necessarily establishes the unfairness of a trial.” State v.
Vargas, 249 Ariz. 186, 190, ¶ 13 (2020).

1. The State Did Not Create Fundamental Error by
Commenting on Waldrup’s Friend’s Absence as a Witness.

¶33 Counsel is given “wide latitude in presenting closing
arguments to the jury” because they “are permitted to comment on the
evidence already introduced and to argue reasonable inferences
therefrom.” State v. Gonzales, 105 Ariz. 434, 436–37 (1970). The State may
comment upon the defendant’s failure to call a particular witness to testify
to demonstrate the absence of exculpatory evidence if the comment does
not call attention to the defendant’s failure to testify. State v. Edmisten, 220
Ariz. 517, 525–26, ¶¶ 26–27 (App. 2009) (no prosecutorial error where the
State reminded the jury that it had the burden of proof but commented on
the defendant’s failure to call a witness who, according to another witness’s
testimony, had been present at an identification that the defendant alleged
had never happened).

¶34 Here, the State said the following:

[Officer Teschler] investigated this incident by following up
with [Waldrup] and asking him some questions, such as
where he was that evening. [Waldrup] stated to Officer
Teschler he was at the Flying X, which is a bar, and he had 2
pints there. He then went over to McKee’s Pub and Grill,
which we have a receipt for at 2:00 a.m. in the morning, and
he told Officer Teschler at McKee’s he had 3 beers. He
consumed some alcohol.

He then arrived at Denny’s, and he told Officer Teschler he
got to Denny’s because a friend of his, Angel, drove him, but
there’s no evidence of Angel. She didn’t testify in front of you
today. She wasn’t called as a witness.

* * *

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Officer Teschler asked Bob Waldrup, hey, how can I get a hold
of Angel? How can we find out that she was the one who
drove you from McKee’s Pub and Grill down to the Denny’s?
How do we get a hold of her?

No good answer. No way to contact her. No address. No
known location. You may infer that it wasn’t Angel who was
driving but rather it was [Waldrup] from McKee’s down to
Denny’s.

¶35 The State argued that Waldrup’s friend was never with him
that night, implying that she did not exist. Because Waldrup alleged that
this person drove him to the restaurant, and because he had failed to
produce evidence of her existence, the State correctly commented on the
exculpatory evidence’s absence. See Edmisten, 220 Ariz. at 525–26, ¶¶ 26–27.
Finally, both the jury instructions and the State informed the jury the State
had the burden of proof. Cf. id. at 522–23, ¶¶ 12–16 (No error where jury
instructions and the prosecutor instructed the jury of the State’s burden of
proof).

2. The State Did Not Create Fundamental Error by
Mischaracterizing the Totality of the Circumstances Test for
Actual Physical Control.

¶36 “A misstatement of law constitutes fundamental error when
it goes to the foundation of the case, takes from the defendant a right
essential to his defense, or is so egregious that he could not possibly have
received a fair trial.” State v. Murray, 247 Ariz. 583, 593, ¶ 28 (App. 2019)
(quotation omitted) (review granted Aug. 25, 2020). A court must determine
whether such an error occurred by determining “(1) whether the
prosecutor’s statements called inappropriate matters to the jury’s attention
and (2) the probability that the jury was in fact influenced by those
statements.” Id.

¶37 Here, the prosecutor argued as follows:

As soon as he turns on the engine, he can easily back out and
right then and there be on a main road, the same type of road
you saw Officer Castillo pull up from. And ladies and
gentlemen, these conditions or factors here are nothing more
than sufficient conditions.

The state doesn’t need to meet every single one of them. As a
matter of fact, some of them don’t tell you anything. Some of

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them don’t tell you whether he is or isn’t in actual physical
control because you could be both based on some of these
factors.

What time of day it is or what time it is during the day, that
doesn’t tell you whether someone is or is not in actual
physical control. The weather conditions, that doesn’t tell you
that, nor does the heater or air-conditioning being on or
whether the windows were up or down because people park
their car, they leave their windows down, move away from it.
They’re not in actual physical control.

The time of day could be at any time. Some people leave their
windows rolled down overnight, and they’re not in actual
physical control, or maybe they are.

* * *

You don’t need all of these factors. They’re here to assist you,
and any one of them is a sufficient condition to show actual
physical control, but the big one is whether the defendant had
current or imminent control of his vehicle and it presented a
real danger to himself or others.

¶38 Even if the State’s statements regarding actual physical
control factors were erroneous, the court cured any confusion by correctly
instructing the jury regarding actual physical control factors and how they
were to be weighed. The jurors received a copy of the jury instructions and
were able to use them during deliberation. The jurors were also
admonished that what counsel said was not evidence. We presume jurors
follow their instructions, State v. Pandeli, 242 Ariz. 175, 189, ¶ 58 (2017), and
the State’s mischaracterization of the factor analysis did not create
fundamental error.

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CONCLUSION

¶39 We affirm Waldrup’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: JT

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