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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       MICHAEL JENSEN, Appellant.

                             No. 1 CA-CR 14-0690
                               FILED 10-22-2015


           Appeal from the Superior Court in Coconino County
                         No. S0300CR201200093
                The Honorable Jacqueline Hatch, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                             STATE v. JENSEN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1            Michael Jensen appeals his convictions and concurrent,
presumptive sentences of 4.5 years’ imprisonment for two counts of
aggravated driving under the influence of alcohol, stemming from a
January 15, 2012 incident. We have jurisdiction over Jensen’s timely appeal.
See Ariz. Rev. Stat. (“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, 13-4033(A).1 For
the following reasons, we affirm.

                                  ANALYSIS

       I.     Jensen’s Motion to Preclude the Breath Test Evidence

¶2            Jensen argues the trial court abused its discretion in denying
his pretrial motion to preclude evidence that he registered a blood alcohol
concentration (“BAC”) of .260 and .263 on duplicate breath tests within two
hours of driving. He argues on appeal, as he did before trial, that the State
offered insufficient evidence that the gas standard used to calibrate the
Intoxilyzer 8000 used in his case contained the purported .1 standard
alcohol concentration solution, foundation necessary to show the machine
“was in proper operating condition” under A.R.S. § 28-1323(A)(5). The
court denied the motion following an evidentiary hearing.

¶3            In reviewing a trial court’s denial of a motion to suppress
evidence, this court restricts its review to consideration of the facts the trial
court heard at the suppression hearing, State v. Blackmore, 186 Ariz. 630, 631,
925 P.2d 1347, 1348 (1996), viewed in the light most favorable to sustaining
its ruling. State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996). This
court reviews for an abuse of discretion a trial court’s decision that
sufficient foundation has been laid to admit evidence. State v. George, 206
Ariz. 436, 446, ¶ 28, 79 P.3d 1050, 1060 (App. 2003).



1     We cite the current version of all statutes unless changes material to
our decision have occurred since the date of the crimes.


                                       2
                             STATE v. JENSEN
                            Decision of the Court

¶4             The trial court did not abuse its discretion. Under A.R.S. § 28-
1323(A)(5), results of breath tests are admissible on a showing in pertinent
part that the device “was in proper operating condition,” which can be
demonstrated by periodic maintenance records, such as “[c]alibration
checks with a standard alcohol concentration solution bracketing each
person’s duplicate breath test.” As Jensen recognizes, the State sought to
satisfy § 28-1323(A)(5) by providing calibration checks done before, during,
and after the subject tests to show the particular Intoxilyzer 8000 used was
in proper operating condition. Jensen argues on appeal, as he did in his
pretrial motion, that the State was required to demonstrate the “standard
alcohol concentration solution” referenced in A.R.S. § 28-1323(A)(5) was
“NIST traceable” as required by Arizona Administrative Code R13-10-
104(A)(4), meaning that it was certified as a .1 standard alcohol
concentration solution by the National Institute of Standards and
Technology.      Subsection (B) of § 28-1323, however, provides that
compliance with subsection (A) “is the only requirement for the admission
in evidence of a breath test result.” Section 28-1323(A)(5) does not require
the “standard alcohol concentration solution” be “NIST traceable,” and
accordingly, “NIST traceability” is not a foundational requirement for the
admission of breath-test results. See State ex rel. McDougall v. Superior Court,
181 Ariz. 202, 204-07, 888 P.2d 1389, 1391-94 (App. 1995) (holding the State
was not required to demonstrate under the predecessor statute full
compliance with Department of Health Services regulations).

¶5            Moreover, the State offered sufficient evidence that the
calibration checks conducted in this case utilized a solution that was not
only a .1 “standard alcohol concentration solution,” but was “NIST
traceable.” At the evidentiary hearing on Jensen’s motion to suppress, the
quality-assurance specialist for the Intoxilyzer 8000 used in Jensen’s case
testified he checked the attached cylinder containing the alcohol
concentration solution, and the cylinder registered a standard gas
concentration of .1. He further testified the label on all such cylinders stated
they were “certified, traceable by NIST.” Although he admitted on cross-
examination that he could not specifically say the label on this particular
cylinder bore the words “NIST traceable,” he had confirmed with the
person at the Department of Public Safety (“DPS”) crime lab responsible for
sending the cylinders that all cylinders DPS sends to police for use with an
Intoxilyzer are NIST traceable.2 On this record, the trial court acted within

2       Jensen did not object to this testimony on hearsay or other grounds.
In any event, hearsay is generally admissible in a suppression hearing. See
State v. Keener, 110 Ariz. 462, 465, 520 P.2d 510, 513 (1974); see also State v.



                                       3
                             STATE v. JENSEN
                            Decision of the Court

its discretion in denying Jensen’s motion to preclude the breath-test results
on the ground the State could not show the Intoxilyzer 8000 was calibrated
with a “standard alcohol concentration solution” under A.R.S. § 28-
1323(A)(5).

       II.    Jensen’s Profiling Objection

¶6            Jensen next argues the trial court abused its discretion in
overruling his “profiling” objection to the investigating officer’s testimony
that Jensen’s minimization of how drunk he was at the scene was a
“common practice” among DUI suspects. The officer testified Jensen stated
at the scene that, on a scale of “0” (completely sober) to “10” (passed out),
he considered himself a “1.” However, after the officer arrested Jensen,
advised him of his rights pursuant to Miranda,3 and informed him that he
had performed poorly on the field sobriety tests and registered a high BAC,
Jensen told the officer he believed he ranked a “6” on the same scale. The
prosecutor asked the officer if it was a “common practice” for someone to
minimize his drinking at the scene of a DUI stop, and the officer answered
affirmatively. Defense counsel objected on the ground of “profiling.” The
trial court overruled the objection. We review the court’s ruling for an
abuse of discretion. State v. Ketchner, 236 Ariz. 262, 264, ¶ 13, 339 P.3d 645,
647 (2014).

¶7            This was not an impermissible use of “profile evidence.”
Profile evidence is evidence that “tends to show that a defendant possesses
one or more of an informal compilation of characteristics or an abstract of
characteristics typically displayed by persons engaged in a particular kind
of activity.” Id. at ¶ 15 (citations and internal quotations omitted).
“Although there may be legitimate uses for profile evidence . . . profile
evidence may not be used as substantive proof of guilt because of the risk
that a defendant will be convicted not for what he did but for what others
are doing.” Id. at 264-65, ¶ 15, 339 P.3d at 647-48 (citations and internal
quotation omitted). The testimony was not offered to show that because
Jensen possessed a characteristic common among DUI suspects, he was
guilty of DUI; rather, it was offered to show he initially minimized his level


Riley, 196 Ariz. 40, 43, ¶¶ 6-7, 992 P.2d 1135, 1138 (App. 1999) (holding that
confrontation rights do not apply to the same extent at a pretrial
suppression hearing as they do at trial); Ariz. R. Evid. 104(a) (stating a court
is not bound by rules of evidence in preliminarily determining the
admissibility of evidence).

3      Miranda v. Arizona, 384 U.S. 436 (1966).


                                       4
                             STATE v. JENSEN
                            Decision of the Court

of inebriation, a tactic not uncommon among drivers when first stopped for
DUI.

¶8             Moreover, even assuming arguendo this evidence was
improper, any error in admitting it was harmless. To demonstrate an
objected-to error was harmless, the State must prove beyond a reasonable
doubt the error in admitting the evidence “did not contribute to or affect
the verdict or sentence.” State v. Henderson, 210 Ariz. 561, 567, ¶ 18, 115 P.3d
601, 607 (2005). The State has met its burden. On this record, in which
Jensen ultimately ranked himself a “6” on a scale of “0” to “10” measuring
drunkenness, and registered, at a minimum, a .260 BAC within two hours
of driving, any error in eliciting testimony that he initially minimized his
intoxication neither contributed to nor affected the verdicts of guilt.

       III.   Jensen’s Request for a Willits Instruction

¶9             Jensen also argues the trial court abused its discretion in
denying his request for a Willits4 instruction, based on the failure of the
investigating officer to videotape him performing all of his field sobriety
tests. The court denied the request, reasoning that the officer’s first priority
was safety, not videotaping the field sobriety tests, and noting the officer
had recorded in his report and testified how Jensen performed on the tests.
The court also concluded that, even if the officer had captured all of the field
sobriety tests on the video (which he was not required to do), the evidence
was insufficient to show it would have been exculpatory. The Willits
instruction allows the jury to draw an inference from the State’s destruction
of material evidence that the lost or destroyed evidence would be
unfavorable to the State. See State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975
P.2d 75, 93 (1999). Nevertheless, even “[d]estruction or nonretention of
evidence does not automatically entitle a defendant to a Willits instruction.”
State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995). “To be entitled to
a Willits instruction, a defendant must prove that (1) the [S]tate failed to
preserve material and reasonably accessible evidence that could have had
a tendency to exonerate the accused, and (2) there was resulting prejudice.”
State v. Glissendorf, 235 Ariz. 147, 150, ¶ 8, 329 P.3d 1049, 1052 (2014)
(citations omitted).

¶10           A defendant is not entitled to a Willits instruction in a case like
this – where a law enforcement officer has merely failed “to seek out and
gain possession of potentially exculpatory evidence.” State v. Perez, 141
Ariz. 459, 463, 687 P.2d 1214, 1218 (1984); see also Murray, 184 Ariz. at 33, 906


4      State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).


                                       5
                             STATE v. JENSEN
                            Decision of the Court

P.2d at 566 (recognizing a defendant is not entitled to a Willits instruction
“merely because a more exhaustive investigation could have been made”);
State v. Willcoxson, 156 Ariz. 343, 346, 751 P.2d 1385, 1388 (App. 1987)
(concluding “a failure to pursue every lead or gather every conceivable bit
of physical evidence“ does not require a Willits instruction). Moreover, the
evidentiary value of additional video of Jensen’s performance of field
sobriety tests relies on speculation, an insufficient basis for a Willits
instruction. See Glissendorf, 235 Ariz. at 150, ¶ 9, 329 P.3d at 1052. Jensen
suggests only that a videotape might have shown the uneven surface of the
shoulder of the road was responsible for his poor performance on the
“balance[-]based field tests.” Jensen performed the walk-and-turn test,
however, on the paved road, and one of the patrol vehicle’s video cameras
captured his performance, albeit only from the waist up. Also, Jensen has
failed to explain how uneven ground or a sand and gravel substrate would
have impaired his ability to perform the one-leg stand. The trial court did
not abuse its discretion in denying Jensen’s request for a Willits instruction.

                              CONCLUSION

¶11           We affirm Jensen’s convictions and sentences.




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