THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

PORTLEY, Judge.

¶ 1 Defendant Daimen Joseph Irizarry challenges the denial of his motion to vacate the judgment after he was convicted of multiple counts of aggravated assault and drive-by shooting, as well as unlawful flight. For the following reasons, we affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶ 2 After Defendant was pulled over for a traffic violation in January 2010, his passenger, Christopher Redondo, shot and killed Gilbert Police Lieutenant Eric Shuhandler. Defendant then sped away, and was chased by other police officers. During the hour-long high-speed chase, Redondo fired shots at the pursuing officers and threw a variety of things2 from the truck at the patrol vehicles. When the truck ran out of gas and finally stopped near the town of Superior, Defendant and Redondo were arrested after a brief shootout.

¶ 3 Defendant was indicted in February 2010 for eight counts of aggravated assault and four counts of drive-by shooting, each a class two dangerous felony, and unlawful flight from a law enforcement vehicle.3 A jury subsequently convicted him as charged, and found three aggravating factors. He was sentenced to over 100 years in prison4 and given 254 days of presentence incarceration credit. After he was sentenced, Defendant filed an unsuccessful motion to vacate the judgment. We have jurisdiction over his appeal pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A) (West 2012), 13-4031 (West 2012), and 13-4033 (West 2012).

DISCUSSION

¶ 4 Defendant contends that his convictions and sentences should be reversed because the trial court erred when it denied his motion to vacate the judgment. He argues that his motion should have been granted because the State "used perjured testimony and false evidence to convict him," which violated his due process rights. We review the ruling for an abuse of discretion. State v. Nordstrom, 200 Ariz. 229, 255, ¶ 90, 25 P.3d 717, 743 (2001) (citation omitted).

¶ 5 Defendant complains that the State elicited perjured testimony from the police dispatcher, when it questioned her about her communications with the officer during the traffic stop before he was murdered. The State introduced a recording of the conversation, and the dispatcher testified that the recording began when the officer switched to channel two "to run a driver's license" and to "run [a person] in the vehicle." She testified that the officer initially called in the stop at 10:42 p.m., and that she began speaking with him on channel two at 10:49 p.m. When the State asked the dispatcher whether the recording was "real time" from the time she began speaking with the officer to the time his microphone went silent, she responded affirmatively. Twelve days later, Defendant recalled the dispatcher to the stand and she testified that she had communications with other officers that were not on the recording, and that the recording would be longer if those other conversations were included.

¶ 6 Defendant contends that because he "had always maintained that he panicked when he left the scene of the shooting," the dispatcher's "perjury" materially affected him because "[t]he state was able to get the jury to believe there was no way all of the events related by the [Defendant] could have happened within the time on the `doctored' tape."5

¶ 7 The dispatcher's testimony did not constitute perjury.6 The record reflects that she was willing to answer to the best of her ability questions which at times were confusing. Any inconsistency or changes during her testimony do not constitute perjury or infer that the prosecution knowingly presented perjured testimony. See Tapia v. Tansy, 926 F.2d 1554, 1563, (10th Cir. 1991); State v. Morrow, 111 Ariz. 268, 271, 528 P.2d 612, 615 (1974). Furthermore, any confusion created by the dispatcher's testimony was resolved by her further testimony when Defendant recalled her to the stand during his case.

¶ 8 Moreover, the jury had an opportunity to listen to her testimony, and assess her credibility. See State v. Cox, 217 Ariz. 353, 357, ¶ 27, 174 P.3d 265, 269 (2007) (quoting State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974) ("`[T]he credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury.'"). The jury also was properly instructed that it had to determine a witness's credibility. In the absence of any evidence in the record to conclude otherwise, we presume that a jury has followed the court's instructions, State v. Gallardo, 225 Ariz. 560, 569, ¶ 40, 242 P.3d 159, 168 (2010) (citation omitted), and we will not second-guess the jury's determinations of witness credibility. State v. Canez, 202 Ariz. 133, 149, ¶ 39, 42 P.3d 564, 580 (2002) (citation omitted) (witness credibility "is a matter for the jury").

¶ 9 In fact, the dispatcher's testimony about the brief traffic stop before Redondo shot the officer was less prejudicial than other evidence presented during trial. See State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (citations omitted) (error is harmless, and reversal inappropriate, unless the guilty verdict is directly attributable to the error). The issue during trial was not whether the dispatcher was a perfect witness or whether the recording fully captured all of the voices during the brief traffic stop, but whether the State presented evidence that Defendant was guilty beyond a reasonable doubt of multiple crimes, including unlawful flight after the traffic stop. The jury could have believed that he was under the influence of earlier methamphetamine use, panicked when he heard the gun shot, drove away, and kept driving because he was afraid that Redondo would use the gun against him, and still convicted him. Accordingly, the testimony and the recording did not have a material effect on the verdict.

CONCLUSION

¶ 10 For the foregoing reasons, we affirm Defendant's convictions and sentences.

JON W. THOMPSON, Presiding Judge, JOHN C. GEMMILL, Judge, concurring.