
    936 P.2d 1280
    STATE of Arizona, Appellee, v. Pedro NORIEGA, Jr., Appellant.
    No. CR-96-0515-PR.
    Supreme Court of Arizona.
    April 30, 1997.
   ORDER

It appearing to the Court that the grant of review in this case was improvident, IT IS ORDERED that the order granting review is vacated.

IT IS FURTHER ORDERED that the petition for review is dismissed.

Justice Martone dissents from the order dismissing this case on the following grounds: (1) under Arizona law, a mere presence instruction is never required because it is always implicit in the charge, and (2) in those close cases in which a trial judge chooses to give it, it must nevertheless be supported by the evidence.

Justices Feldman and Jones wish to add that they join the Court’s order with confidence that the Court of Appeals was well aware that instructions need not be given unless supported by evidence. They are equally confident that the bar shares this view and will not misinterpret the Court of Appeals’ opinion.  