                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                        WILLIE ISAIAH JOHNSON,
                                Appellant.

                             No. 1 CA-CR 15-0448
                              FILED 8-11-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR 2014-123358-001
                  The Honorable Daniel J. Kiley, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

The Hopkins Law Office, PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant
                           STATE v. JOHNSON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Peter B. Swann joined.


O R O Z C O, Judge:

¶1            Willie Isaiah Johnson appeals his convictions and sentences
for two counts of threatening or intimidating, one count of aggravated
assault, one count of resisting arrest, and one count of assisting a criminal
street gang. For the reasons that follow, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            In May 2014, a woman working at a mall kiosk contacted
security to report “an issue that she was having” with a patron. Based on
the description she provided, the security dispatcher located Johnson on a
video monitor, and R.R., a mall security officer, moved to Johnson’s vicinity
to monitor him. R.R. observed that Johnson was loud and appeared to be
arguing with another kiosk worker. When Johnson returned to the women
and children he came to the mall with, he asked R.R. “[W]hy are you
watching me[?]” and “Is there a problem?” Johnson then began filming
R.R. with his cell phone.

¶3            At that point, R.R. asked Johnson to leave, and Johnson and
his companions walked away. While walking away, Johnson said, “Wait
till I come back.” R.R. asked dispatch to keep a surveillance camera on
Johnson.

¶4           Soon thereafter, Officer J.G., an off-duty police officer
working as mall security, walked toward Johnson. Officer J.G. heard
Johnson threaten to kill R.R. and saw Johnson make gang signs with his
hands. Concerned for R.R.’s safety, Officer J.G. attempted to grab Johnson’s
arms from behind, but Johnson spun around with a fist. Officer J.G.
responded with an “impact push” to deflect a possible punch, and
propelled Johnson backward into a storefront glass window.



1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


                                     2
                           STATE v. JOHNSON
                           Decision of the Court

¶5            Officer J.G. and Johnson then fell to the ground and Officer
J.G. ordered Johnson to place his hands behind his back, which he refused.
Moments later, Officer M.W., another off-duty police officer employed as
mall security, assisted Officer J.G. in taking Johnson into custody. As
Officer J.G. attempted to control Johnson’s right arm, Johnson “spr[a]ng
up” and tried to punch Officer M.W. in the head. Officer J.G. tased Johnson,
handcuffed him, and escorted him to the mall security office. Johnson
continued to threaten the officers, stating, “Now, I know why people kill
cops. Y’all are going to be dead. I’ll be back.”

¶6            The State charged Johnson with four counts of threatening or
intimidating (Count 1 – victim R.R.; Count 3 – victim Officer J.G.; Count 5 –
victim Officer M.W.; Count 8 – victim Officer S.W.), two counts of
aggravated assault (Count 2 – victim Officer J.G.; Count 4 – victim Officer
M.W.), one count of resisting arrest (Count 6), and one count of assisting a
criminal street gang (Count 7). The State also alleged historical prior felony
convictions and aggravating circumstances.

¶7             Officer S.W., who arrived at the mall and went to the mall’s
security office after other officers had taken Johnson there, viewed a mall
surveillance video and requested a copy of it. Security personnel could not
immediately copy the video, but Officer S.W. noted in his police report that
a copy of the surveillance video was impounded. When a detective later
requested the surveillance video, Officer S.W. learned that mall security
had never provided police with a copy. Police then discovered that mall
security had recorded over the tape.

¶8            Upon learning police had never impounded the surveillance
video and it had been destroyed, Johnson moved to dismiss all charges,
arguing police acted in bad faith and caused him prejudice. The court
denied the motion, finding the State’s failure to preserve the video was the
result of “sloppy police work,” not bad faith. The court also noted that
defense counsel could only speculate that the video would be exculpatory
and there was no evidence of actual prejudice.

¶9            Johnson then moved in limine to preclude Officer S.W. or any
other State witness from testifying regarding the contents of the video. The
court deferred ruling on the motion and, at trial, the prosecutor informed
the court that she was “not planning on eliciting” any testimony regarding
the contents of the video. Based on this representation, the court found,
and defense counsel agreed, that the motion was moot.




                                      3
                           STATE v. JOHNSON
                           Decision of the Court

¶10           Johnson also requested a Willits instruction, claiming the
surveillance video would have provided exculpatory evidence. The court
denied the request, concluding the State never possessed the video and was
not duty-bound to seek exculpatory evidence on Johnson’s behalf. The
court further found that any prejudice caused by the loss of the video was
ameliorated by the multiple eyewitnesses available to testify.

¶11            At trial, Johnson called his girlfriend, Domonique, to testify.
She testified that she accompanied Johnson to the mall with her sister and
their children. She saw a security guard, R.R., “staring [Johnson] down”
and asked R.R. whether “there [was] a problem.” R.R. responded, “If
you’re not doing anything, don’t worry about it.” Uncomfortable with
R.R.’s response, Domonique decided to leave the mall. R.R. followed the
group as they were getting ready to leave and Johnson began filming R.R.
with his cell phone. Without warning, a police officer then “ran up” on
them, grabbed Johnson’s arm, and pushed Johnson into a window.
Domonique testified that Johnson neither threatened any of the officers nor
“threw” any type of gang signs.

¶12           Domonique’s sister, Davicka, also testified for Johnson.
Davicka testified that as they were leaving the mall, an officer ran up behind
Johnson, grabbed Johnson’s right arm behind his back, and threw Johnson
into a glass window. Davicka further testified that Johnson was facing
away when the officer grabbed him, that Johnson did not turn around
before the officer got to him, and that Johnson “didn’t do anything.”

¶13           After Davicka’s testimony, the State indicated that it intended
to call Officer S.W. to testify as to what he observed on the surveillance
video to rebut the testimony of Johnson’s two witnesses. Officer S.W. had
written down “step by step” the interaction he observed between Johnson
and Officer J.G. in his report, a copy of which was given to defense counsel
before trial.

¶14           Over Johnson’s objection, the court found Officer S.W.’s
rebuttal testimony regarding the surveillance video was admissible, but
reversed its earlier ruling denying a Willits instruction to remedy any
potential prejudice. On rebuttal, Officer S.W. testified that the surveillance
video showed that Officer J.G. attempted to grab Johnson’s arm, and
Johnson swung around and assumed “a fighting stance.” That is, Officer
J.G. did not perform the “impact push” until after Johnson had turned and
“squared up” to the officer in an aggressive manner.




                                      4
                            STATE v. JOHNSON
                            Decision of the Court

¶15           The jury found Johnson guilty of two counts of threatening
and intimidating (Counts 1 and 3), one count of aggravated assault (Count
4), one count of resisting arrest (Count 6), and one count of assisting a
criminal street gang (Count 7). Johnson timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1, 13-4031, and
4033.A.1 (West 2016).2

                                DISCUSSION

¶16           Johnson contends the trial court should not have permitted
Officer S.W. to testify regarding the contents of the surveillance video
because he could not view the video before it was destroyed, even though
the court gave a Willits instruction. He further asserts the admission of this
testimony infringed on his constitutional right to confront witnesses. We
generally review an evidentiary ruling for an abuse of discretion. State v.
Ellison, 213 Ariz. 116, 129, ¶ 42 (2006). “Evidentiary rulings that implicate
the Confrontation Clause, however, are reviewed de novo.” Id.

¶17           Relying primarily on State v. Leslie, 147 Ariz. 38 (1985),
Johnson contends the testimony by Officer S.W. regarding the contents of
the surveillance video was inadmissible because he was never able to view
it and therefore could not engage in “meaningful rebuttal.”

¶18            In this case, Johnson asked for and received a Willits
instruction at trial. A Willits adverse-inference instruction “adequately
protects a defendant’s due process rights” when the “state has destroyed or
failed to preserve evidence unless the defendant is prejudiced or the state
acted in bad faith.” State v. Serna, 163 Ariz. 260, 264 (1990); see also State v.
Glissendorf, 235 Ariz. 147, 150-51, ¶ 11 (2014).

¶19           Johnson does not argue that the Willits instruction was error.
Rather, because he did not have a chance to review the video, he argues he
was prejudiced because he could not prepare a meaningful rebuttal.
Johnson further argues that he was prejudiced by Officer S.W.’s rebuttal
testimony regarding the video because the testimony contradicted his
version of the events. What constitutes proper rebuttal is within the trial
court’s discretion, and we will not reverse absent an abuse of discretion.
State v. Young, 116 Ariz. 385, 387 (1977). Officer S.W. viewed the
surveillance video and summarized its contents in his police report, which


2     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


                                       5
                            STATE v. JOHNSON
                            Decision of the Court

defense counsel received before trial. Therefore, Johnson knew what
Officer S.W. was going to testify about and had an opportunity to cross
examine him regarding the contents of the video. Accordingly, Johnson did
not suffer prejudice, and the court did not abuse its discretion. See Young,
116 Ariz. at 387 (“The trial court’s determination will not be disturbed
unless manifest abuse has prejudiced the complaining party.”) (quoting
Jansen v. Lichwa, 13 Ariz. App. 168, 171 (1970)). Moreover, we will not
presume a denial of due process from the nonproduction of evidence alone.
See State ex rel. Hyder v. Hughes, 119 Ariz. 261, 263 (1978).

¶20            Furthermore, Johnson’s claim that his confrontation rights
were violated because he was unable to meaningfully cross-examine Officer
S.W. is equally unavailing. “The Confrontation Clause bars admission of
out of court testimonial evidence unless the defense has had an opportunity
to cross-examine the declarant.” State v. Parker, 231 Ariz. 391, 402, ¶ 38
(2013) (citing Crawford v. Washington, 541 U.S. 36, 38 (2004)). “There is no
violation of the right to confrontation when a person who analyzes
evidence which is later lost is available for full cross-examination[.] ” State
v. Cruz, 123 Ariz. 497, 500 (App. 1979).

¶21          In this case, defense counsel had the opportunity to fully
cross-examine Officer S.W. regarding the surveillance video. Accordingly,
there was no Confrontation Clause violation.

                              CONCLUSION

¶22           Johnson’s convictions and sentences are affirmed.




                                    :AA




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