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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        TONY LEE MYERS, Appellant.

                             No. 1 CA-CR 15-0455
                              FILED 9-1-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-156515-001
              The Honorable Erin Otis, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
                             STATE v. MYERS
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge Kent E. Cattani joined



P O R T L E Y, Judge:

¶1             Tony Lee Myers appeals his convictions and sentences for
burglary in the third degree and possession of burglary tools. He argues
prosecutorial misconduct denied him a fair trial, the trial court should have
granted his request to instruct the jury pursuant to State v. Willits, 96 Ariz.
184, 393 P.2d 274 (1964), and that he was improperly sentenced as a category
three repetitive offender. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            While responding to a call regarding “a suspicious subject,”
Officer Hyde observed Myers riding a bicycle while balancing a large duffle
bag and a square object on the handlebars. Because Myers matched the
description of the subject from the call, Officer Hyde conducted a stop and
noticed that the square object was a deep-cycle marine battery with wires
attached to it that appeared to have been recently cut. The officer also
noticed wire cutters in Myers’ jacket pocket.

¶3            Officer Hyde asked Myers where he had obtained the battery,
and Myers responded that someone gave it to him from a car located nearby
in return for work he had done. Officer Ross, who had arrived, went to the
area Myers described, but did not find any abandoned cars or other vehicles
that could have transported the battery.2 Meanwhile, Sergeant Rogers

1We view the facts in the light most favorable to upholding the verdicts
and resolve all reasonable inferences against the defendant. State v. Harm,
236 Ariz. 402, 404 n.2, 340 P.3d 1110, 1112 n.2 (App. 2015) (citation omitted).

2 At trial, Officer Ross noted it would be odd to look for a deep-cycle marine
battery in a car. He explained, “The only way it would be in there if it was
like in the back of a pickup truck or out. It wouldn’t be inside of a wrecked
vehicle.” Ross did not see a pickup truck in the area he searched.




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                              STATE v. MYERS
                             Decision of the Court

discovered a school bus near the area of the call, and noticed the battery
compartment was unlatched and empty, except for several cut wires.

¶4            Officer Hyde then asked Myers if he had taken the battery
from the bus. Myers responded that he “didn’t know what [Officer Hyde
was] talking about.” The officers then contacted the owner of the bus, who
identified the battery Myers was carrying as one of two batteries that were
inside the bus.3 The police gave the battery to the owner of the bus, and he
took it with him.

¶5            Myers was charged with third-degree burglary, a class 4
felony, and possession of burglary tools, a class 6 felony. The jury found
him guilty as charged. At the subsequent sentencing hearing, the trial court
found that Myers had two historical prior felony convictions, and sentenced
him as a category three repetitive offender by sending him to prison for
mitigated concurrent prison terms. Myers filed an appeal, and we have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-
120.21(A)(1), 13-4031, and -4033(A)(1).4

                                 DISCUSSION

I.       Prosecutorial Misconduct

¶6             Myers argues the prosecutor engaged in three instances of
misconduct at trial that individually and cumulatively require reversal. He
first contends that, during opening statements, the prosecutor appealed to
the fears of the jury and improperly argued inferences and conclusions to
be made from the expected evidence. Myers also argues the prosecutor
committed misconduct by eliciting testimony from Officer Ross that
commented on his right to remain silent.

¶7            To prevail on a claim of prosecutorial misconduct, a
defendant must demonstrate that “(1) misconduct is indeed present; and (2)
a reasonable likelihood exists that the misconduct could have affected the
jury’s verdict, thereby denying defendant a fair trial.” State v. Moody, 208
Ariz. 424, 459, ¶ 145, 94 P.3d 1119, 1154 (2004) (citations omitted). To
warrant reversal, “[t]he misconduct must be ‘so pronounced and persistent

3The victim testified he had “checked the bus” about a week before the
officers contacted him regarding the theft. At that time, the bus’ two
batteries were “still there.”

4   We cite to the current version of the statute unless otherwise noted.


                                        3
                            STATE v. MYERS
                           Decision of the Court

that it permeates the entire atmosphere of the trial.’” State v. Morris, 215
Ariz. 324, 335, ¶ 46, 160 P.3d 203, 214 (2007) (quoting State v. Hughes, 193
Ariz. 72, 79, ¶ 26, 969 P.2d 1184, 1191 (1998)).

¶8           The prosecutor began her opening statements as follows:

             Thank you, Your Honor. Good afternoon, ladies
             and gentlemen. We’re here because the
             defendant thinks that it’s okay to take things
             that don’t belong to him. He thinks you’re going
             to let him get away with it because nobody saw
             him actually take it. Your verdict will decide if
             he’s right.

¶9           Myers objected, arguing the phrase “to let him get away with
it” inappropriately “[i]nflames the passions of the jury.” The court
disagreed, but told the prosecutor she should “[j]ust move on.”

¶10          The prosecutor then outlined the expected evidence, and
stated:

             The State has charged the defendant with
             burglary in the third degree and possession of
             burglary tools. The State charged the defendant
             with this -- with these charges because the
             defendant clearly entered into that battery
             compartment of the bus, used the wire cutters
             to cut –

¶11          Myers then objected because the prosecutor was improperly
“arguing to the jury the charges and the evidence that supports those
charges.” The court overruled the objection, and the prosecutor concluded:

             As I was saying, the State has charged the
             defendant with the burglary and the possession
             of burglary tools because the State believes that
             the evidence at trial will show that the
             defendant entered into that bus compartment,
             cut the wires attached to the battery, and the
             possession of the wire cutters are [sic] burglary
             tool. Therefore, at the end of this trial the State
             will request that you render a verdict of guilty
             as to both counts against the defendant. Thank
             you.


                                     4
                              STATE v. MYERS
                             Decision of the Court

¶12            The prosecutor’s initial comment during her opening
statement, “He thinks you’re going to let him get away with it because
nobody saw him actually take it,” was improper and beyond the scope of
appropriate opening statement, given that it was more argumentative than
informative, see State v. King, 180 Ariz. 268, 278, 883 P.2d 1024, 1034 (1994),
but it was not inflammatory because it was not an appeal to the jurors’ fears
or a request to the jury to “send a message” to society. Instead, the
prosecutor was referring, albeit inartfully, to Myers’ noticed defense of
insufficient evidence, given that there were no eyewitnesses to the burglary
or theft, and then stating the obvious: Myers desired not-guilty verdicts.
See State v. Eisenlord, 137 Ariz. 385, 390, 670 P.2d 1209, 1214 (App. 1983)
(concluding that the prosecutor's comments were proper as defense counsel
had given notice of entrapment was a defense).

¶13            “Opening statements are intended to inform the jury of what
the party expects to prove and prepare the jury for the evidence that is to
be presented.” King, 180 Ariz. at 278, 883 P.2d at 1034 (citation omitted).
But, opening statements are not a time to argue the inferences and
conclusions that may be drawn from evidence yet to be admitted. State v.
Bible, 175 Ariz. 549, 602, 858 P.2d 1152, 1205 (1993) (citation omitted); see also
King, 180 Ariz. at 278, 883 P.2d at 1034.

¶14             Here, the prosecutor’s statement that “the defendant clearly
entered into that battery compartment of the bus, used the wire cutters to
cut-“ arguably did not comport with Bible because the State’s case rested
entirely on circumstantial, not direct, evidence. However, unlike in Bible,
the prosecutor here properly clarified, “the State believes that the evidence
at trial will show that the defendant entered into that bus compartment, cut
the wires attached to the battery . . . .” With the clarification, the
prosecutor’s statement did not rise to the level of misconduct.

¶15            The third instance of purported misconduct occurred during
the State’s redirect examination of Officer Ross. Earlier, during the officer’s
cross-examination by Myers’ counsel, he answered, “no” when asked
whether he took Myers with him to search the area Myers claimed that
someone gave him the battery; and whether Myers was there to give
additional directions to get to the right spot. Then, on redirect, the
following occurred:

              Q. Another question that the defense attorney
              asked you was about taking [Myers] around the
              location to try to locate where he claimed he
              took the battery, right?


                                        5
                            STATE v. MYERS
                           Decision of the Court

             A. Correct.

             Q. Are you aware of any request from [Myers]
             to do so?

             A. No, I’m not.

             Q. And you didn’t actually talk to [Myers]?

             A. Not until processing and during processing
             he didn’t want to make any statements.

             [DEFENSE COUNSEL]: Objection, Your Honor.

             THE COURT: What’s the objection?

             [DEFENSE COUNSEL]: Comments on his right
             to invoke, Your Honor.

             THE COURT: Can you repeat the question? I
             want to make sure I heard it right.

             [PROSECUTOR]:

             Q. You didn’t have any -- you didn’t speak to
             [Myers] afterwards?

             A. Other than small talk, nothing pertaining to
             the case.

             THE COURT: Yeah, I’m going to overrule that
             objection.

¶16         Myers asserts the questions and answers constituted an
improper comment on his Fifth Amendment right to remain silent and,
thus, amounted to prosecutorial misconduct. We disagree.

¶17           The prosecutor’s questions about Officer Ross’s
communication with Myers were not intended to elicit testimony
commenting on his right to remain silent, and the jury would not “naturally
and necessarily perceive [Ross’ testimony] to be a comment on the failure
of the defendant to testify.” State v. Schrock, 149 Ariz. 433, 438, 719 P.2d
1049, 1054 (1986). Rather, the question, which drew the objection and only
required a simple “no” answer, was asked to rebut the cross-examination
of Officer Ross that implied that he ignored Myers’ request to search for the


                                     6
                             STATE v. MYERS
                            Decision of the Court

vehicle asserted to be the source of the battery. Considered in this context,
the questions did not elicit testimony that supported an unfavorable
inference of Myers’ guilt. See id. (noting statements regarding a defendant’s
silence must be examined in context to determine if they unconstitutionally
“support[] an unfavorable inference against the defendant.”). However,
even if there was an impropriety as a result of Officer Ross’ unsolicited
commentary, it cannot be attributed to the prosecutor, and Myers does not
provide any controlling authority that would lead us to a contrary
conclusion.5 Consequently, no prosecutorial misconduct occurred. 6

¶18            Because no misconduct occurred in any of the three
individual instances, no cumulative misconduct occurred.7 See State v.
Bocharski, 218 Ariz. 476, 492, ¶ 75, 189 P.3d 403, 419 (2008) (“Absent any
finding of misconduct, there can be no cumulative effect of misconduct
sufficient to permeate the entire atmosphere of the trial with unfairness.”).




5 The cases Myers relies upon all concern prosecutors who arguably
commented upon a defendant’s silence or engaged in other misconduct.
Donnelly v. DeChristoforo, 416 U.S. 637, 640 (1974); Griffin v. California, 380
U.S. 609, 610-11 (1965); State v. Trostle, 191 Ariz. 4, 16, 951 P.2d 869, 881
(1997); State v. Schrock, 149 Ariz. 433, 438, 439, 719 P.2d 1049, 1054, 1055
(1986); State v. Decello, 113 Ariz. 255, 258, 550 P.2d 633, 636 (1976); State v.
Martinez, 130 Ariz. 80, 82, 634 P.2d 7, 9 (App. 1981).

6 Because the prosecutor did not comment on Myers’ silence, we do not
address Myers’ argument that the Arizona Constitution provides broader
protections against self-incrimination than does the Fifth Amendment. See
Ariz. Const. art. 2, § 10 (“No person shall be compelled in any criminal case
to give evidence against himself . . . .”).

7 To the extent the parties disagree as to whether we review for fundamental

error or an abuse of discretion, we need not decide which standard of
review to apply because we conclude no error, fundamental or otherwise,
occurred. See State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342, (1991)
(“Before we may engage in a fundamental error analysis, however, we must
first find that the trial court committed some error.”).




                                       7
                              STATE v. MYERS
                             Decision of the Court

II.    Willits Instruction

¶19            Myers requested a Willits instruction based on the State’s
failure to preserve the battery for trial.8 The court denied the request. After
hearing the officer’s explanation that the battery was not impounded for
safety reasons and returned to its owner, the court accepted the explanation
and noted that photographs of the battery taken at the time of the incident
were introduced into evidence; thus, the absence of the physical battery did
not prejudice Myers.

¶20            We review a court’s decision regarding a Willits instruction
for an abuse of discretion. State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7, 329
P.3d 1049, 1052 (2014). If a trial court properly denies a request for a Willits
instruction, but does so for the wrong reason, “[w]e are obliged to affirm
the trial court’s ruling if the result was legally correct for any reason.” State
v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (citations omitted).

¶21           “A Willits instruction is appropriate when the state destroys
or loses evidence potentially helpful to the defendant.” State v. Lopez, 163
Ariz. 108, 113, 786 P.2d 959, 964 (1990). The instruction informs jurors that
they may infer from the absence of the evidence that it would have been
unfavorable to the State. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975
P.2d 75, 93 (1999). Specifically, the instruction states:

              If you find that the State has lost, destroyed, or
              failed to preserve evidence whose contents or
              quality are important to the issues in this case,
              then you should weigh the explanation, if any, given
              for the loss or unavailability of the evidence. If you
              find that any such explanation is inadequate,
              then you may draw an inference unfavorable to
              the State, which in itself may create a reasonable
              doubt as to the defendant’s guilt.

Rev. Ariz. Jury Instr. Stand. Crim. 10 (emphasis added).




8 Myers also requested the instruction as applicable to the wire cutters he
was carrying when arrested. The State learned later that day that the police
had impounded the tool, and it was available for inspection. Accordingly,
the court refused the requested instruction, and Myers does not argue the
court erred in doing so.

                                        8
                             STATE v. MYERS
                            Decision of the Court

¶22            However, a defendant is not automatically entitled to a Willits
instruction when evidence is lost or destroyed. State v. Murray, 184 Ariz. 9,
33, 906 P.2d 542, 566 (1995). Further, a Willits instruction is not required
merely because a more thorough or exhaustive investigation could have
been undertaken by the State. Id. (citation omitted); see also State v. Davis,
205 Ariz. 174, 180, ¶ 37, 68 P.3d 127, 133 (App. 2002) as amended (April 23,
2003) (“[I]n general, the state does not have a duty to seek out or preserve
potentially exculpatory evidence for the defendant when they have
developed sufficient evidence against him.”). Before a Willits instruction
must be given, the defendant must prove that the State failed to preserve
evidence that is material, accessible, and which might tend to exonerate the
defendant. Murray, 184 Ariz. at 33, 906 P.2d at 566. There is no abuse of
discretion in denying a request for a Willits instruction if a defendant fails
to establish the evidence would have had a tendency to exonerate him. Id.
Further, a defendant must prove that prejudice resulted from the failure to
preserve the evidence. Id.

¶23           Although we agree with Myers that the court improperly
considered the reason proffered by the officers for failing to impound the
battery, we find no abuse of discretion. The State offered photographs of
the battery and its wires, the functional equivalent of the actual battery, and
Myers was able to argue that the failure of the State to produce the battery
was sufficient to find reasonable doubt, given that the photos were taken
from far away and the jurors could not see for themselves whether the wire
cutters could indeed cut the wires. Thus, the lack of a Willits instruction
“did not preclude defense counsel from arguing the substance of that
instruction to the jury.” Perez, 141 Ariz. at 464 n. 6, 687 P.2d at 1219 n. 6.

¶24            Moreover, Myers did not satisfy his burden of establishing the
battery had any exculpatory value. Instead, he only speculated that “being
able to examine [the] wires [that were attached to the battery], and compare
them to the wire cutters seized by police, would potentially exonerate
[him].” The jury, in reaching its decision, had to consider the testimony, the
credibility of the witnesses, as well as the photographs. Speculation about
the missing battery’s “tendency to exonerate” is insufficient to warrant a
Willits instruction. Glissendorf, 235 Ariz. at 150, ¶ 9, 329 P.3d at 1052.

¶25           Finally, the record does not indicate Myers was prejudiced by
the jury’s inability to physically examine the battery and the attached, cut
wires. The photographs were the functional equivalent of having the
battery present. And given that Myers had the ability to cross-examine the
officers and victim, and argue about the quality of the photographs and the



                                      9
                             STATE v. MYERS
                            Decision of the Court

inability of the jury to see the battery for themselves, we find no prejudice.
Consequently, we find no abuse of discretion.

III.   Sentencing

¶26            Myers argues the superior court erred by sentencing him as a
repetitive offender. Under A.R.S. § 13-703(C), “a person shall be sentenced
as a category three repetitive offender if the person . . . stands convicted of
a felony and has two or more historical prior felony convictions.”9

¶27            Before sentencing, Myers moved to strike the State’s
allegations of four historical prior felony convictions on the basis that the
offenses underlying the convictions were committed in another state and
were outside the five-year time limit set forth in A.R.S. § 13-105(22)(e)
(defining “historical prior felony conviction” in relevant part as: “Any
offense committed outside the jurisdiction of this state that was punishable
by that jurisdiction as a felony and that was committed within the five years
immediately preceding the date of the present offense.”). He argued that
A.R.S. § 13-105(22)(d), which, at the time the offenses in this case were
committed in 2014, defined “historical prior felony conviction” as “[a]ny
felony conviction that is a third or more prior felony conviction,” was
inapplicable because that provision did not specifically refer to foreign
convictions. See State v. Newton, 200 Ariz. 1, 2, ¶ 3, 21 P.3d 387, 388 (2001)
(“A basic principle of criminal law requires that an offender be sentenced
under the laws in effect at the time he committed the offense for which he
is being sentenced.”).

¶28            In support of his assertion that the legislature did not intend
foreign convictions to be considered historical prior felony convictions
under § 13-105(22)(d), Myers noted that other subsections in § 13-105(22)
specifically refer to prior foreign convictions, yet subsection (d) did not. See
A.R.S. § 13-105(22)(e), (f) (2014). He also pointed out that the legislature in
2015 added the following to § 13-105(22)(d): “For the purposes of this
subdivision, ‘prior felony conviction’ includes any offense committed
outside the jurisdiction of this state that was punishable by that jurisdiction
as a felony.” See 2015 Ariz. Sess. Laws, ch. 74, § 1 (Reg. Sess.). This
amendment, according to Myers, further indicated the legislature’s intent



9The legislature revised portions of § 13-703 that were effective August 6,
2016. 2016 Ariz. Sess. Laws, ch. 43, § 2 (2nd Reg. Sess.). Those revisions are
immaterial for purposes of this decision.


                                      10
                                STATE v. MYERS
                               Decision of the Court

before 2015 that § 13-105(22)(d) did not apply to foreign convictions. The
trial court disagreed and denied the motion.

¶29           Myers also argues that the § 13-105(22)(d), as it existed before
2015, applied only to Arizona prior convictions, and not foreign
convictions. We recently addressed the same argument and found it
unpersuasive given the 2012 amendments to § 13-703(M), and the language
in § 13-105 that the definitions would control “unless the context otherwise
require[d].” See State v. Johnson, 1 CA-CR 15-0351, 2016 WL4482858 (Ariz.
App. Aug. 25, 2016).10 For the reasons stated in Johnson, we conclude that
the plain language in § 13-703(M) - “Any felony conviction that is a third or
more prior felony conviction[]” (emphasis added) unambiguously
indicated a legislative intent before 2015 to treat foreign felony convictions
(and Arizona convictions) as “historical prior felony convictions” under §
13-105(22)(d).11 As a result, the court did not err in sentencing Myers as a
category three repetitive offender. See A.R.S. § 13-703(C).

                                  CONCLUSION

¶30              We affirm Myers’ convictions and sentences.




                            Amy M. Wood • Clerk of the court
                            FILED: AA




10   Johnson was published after the briefs in this case were filed.

11Because we find pre-2015 § 13-105(22)(d) unambiguous, we need not
address Myers’ arguments that apply other rules of statutory construction.
See Valerie M. v. Arizona Dep’t of Econ. Sec., 219 Ariz. 155, 158, ¶ 11, 195 P.3d
192, 195 (App. 2008) (“If the statutory language is unambiguous, we must
give effect to the language and do not use other rules of statutory
construction in its interpretation.”) (quoting Primary Consultants, L.L.C. v.
Maricopa Cty. Recorder, 210 Ariz. 393, 399, ¶ 24, 111 P.3d 435, 441
(App.2005)).

                                            11
