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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     LOGAN RONEY BYERS, Appellant.

                             No. 1 CA-CR 18-0744
                               FILED 9-24-2019


          Appeal from the Superior Court in Yavapai County
                       No. V1300CR201780097
     The Honorable Jeffrey G. Paupore, Judge Pro Tempore (Retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By William Scott Simon
Counsel for Appellee

M. Alex Harris P.C., Chino Valley
By M. Alex Harris
Counsel for Appellant
                             STATE v. BYERS
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge David D. Weinzweig joined.



M O R S E, Judge:

¶1           Logan Roney Byers appeals his conviction and sentence for
one count of sexual assault. Byers argues that the trial court erred by
precluding evidence and denying his request for a Willits 1 instruction. For
the following reasons, we affirm.

                             BACKGROUND 2

¶2            Late in the evening on December 25, 2015, Byers sexually
assaulted fifteen-year-old M.H. in her bedroom. Byers was M.H.'s uncle
through marriage and they both lived at M.H.'s grandmother's home. The
next day, after showering and changing clothes, M.H. told her grandmother
about the assault and was taken to the hospital. By phone, Byers asked that
M.H. not be taken to the hospital because it would "ruin his life." Despite
Byers' request, M.H. was taken in for medical examination, where a nurse
examined her and noted redness on her vagina. Police also searched the
home, collecting M.H.'s bedding and clothes from the night of the assault.
While no semen was found on M.H. or her belongings, Byers' DNA was
found on the outside of M.H.'s vagina.

¶3            On January 7, 2016, law enforcement conducted a recorded
confrontation call, with M.H. calling Byers. When M.H. asked Byers
whether he had worn a condom he responded by saying "I didn't do
anything [and] even if I did, it doesn't matter, I'm completely […]
uncapable." He continued, saying "I didn't do anything but like I said
whether or not I did or not you'd have nothing to worry about." Pressed
further, he promised M.H. that it was impossible for her to get pregnant
because he had "been tested" and knew for a fact that he was sterile. Byers


1     State v. Willits, 96 Ariz. 184 (1964).

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


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                            Decision of the Court

told M.H. that he couldn't "afford to go to jail" and continually asked if
anyone from law enforcement was listening in on the call. He emphasized
that if he was imprisoned it would create hardship for M.H.'s aunt and
grandmother because he was the primary breadwinner for the household.
Following the confrontation call, Byers sent text messages in which he
continued denying any wrongdoing but repeated that he couldn't "have
kids anyway."

¶4             The State charged Byers with one count of sexual assault, a
class 2 felony. A jury found Byers guilty and he was sentenced to a slightly
mitigated term of six years in prison. He was also ordered to register as a
sex offender for life. Byers timely appealed, and we have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§
12-120.21(A)(1), 13-4031, and -4033(A)(1).

                               DISCUSSION 3

I.            Preclusion of Evidence

¶5             "The admission of evidence is within the trial court's
discretion and will not be disturbed absent an abuse of discretion." State v.
Davolt, 207 Ariz. 191, 208, ¶ 60 (2004). "When an issue is raised but
erroneously ruled on by the trial court, this court reviews for harmless
error." State v. Bible, 175 Ariz. 549, 588 (1993). Error is harmless if the State
demonstrates "beyond a reasonable doubt that the error did not contribute
to or affect the verdict," State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005),
and when excluded evidence is merely cumulative to admitted evidence,
State v. Gallegos, 178 Ariz. 1, 13 (1994).

           a. Motions in Limine

¶6           Before trial, Byers filed a motion in limine to admit (1) M.H.'s
prior sexual conduct, including testimony that her boyfriend digitally
penetrated her; (2) M.H.'s statement to her parents that Byers confessed to
sexually abusing his step-daughter to her; and (3) Byers' discipline of M.H.
a few days before the incident, when he refused to let her boyfriend spend
the night. The superior court denied Byers' motion, stating that (1) Byers
could not question M.H. about her sexual history; (2) Byers was limited to

3      The State argues that Byers waived and abandoned his claims on
appeal due to his failure to give any argument in his briefs. We agree that
Byers' opening brief has failed to develop his arguments. See Ariz. R. Crim.
P. 31.10(a)(7). However, in our discretion, we address the merits of Byers’
arguments.


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                            Decision of the Court

questioning M.H. and a detective about M.H.'s statement; and (3) Byers was
precluded from eliciting testimony about why M.H. was disciplined by
Byers a few days before the incident. Byers filed another motion in limine,
again seeking to admit evidence about M.H.'s prior sexual history with her
boyfriend, but it was denied. During trial, Byers attempted to cross-
examine M.H.'s mother about M.H.'s statements that Byers also molested
his step-daughter, but the court precluded the testimony as inadmissible
hearsay.

¶7             Byers argues that it was error for the trial court to preclude
this evidence, but any error was harmless. Although Byers asserts that the
evidence was precluded, the contested evidence was presented to the jury.
Notwithstanding the court's orders, Byers' trial attorney elicited testimony
on all of these subjects during trial, albeit through different witnesses than
originally suggested by Byers. While not permitted to question M.H. about
her prior sexual history, Byers' counsel cross-examined a detective about
M.H.'s prior sexual history with her boyfriend, including the fact that she
bled when he digitally penetrated her. Byers conceded that questioning
M.H.'s mother about M.H.'s statement regarding the step-daughter
molestation allegation was hearsay but his counsel later questioned M.H.'s
step-father about the same statement. Byers also cross-examined M.H. and
Byers' ex-wife about why M.H. was disciplined a few days before the
incident.

¶8             Because Byers was able to present the challenged evidence to
the jury, any error in the trial court's pretrial rulings was harmless. Gallegos,
178 Ariz. at 13. Moreover, even if the trial court erred in limiting the
questioning of certain witnesses, the evidence against Byers was
overwhelming, supra ¶ 2, and any error was harmless beyond a reasonable
doubt. Henderson, 210 Ariz. at 567, ¶ 18.

           b. Prior Inconsistent Statement

¶9            Byers next contends that the trial court erred when it
precluded admission of emails between the prosecutor and the criminalist
as prior inconsistent statements. A witness' prior statement is not hearsay
if the witness is subject to cross-examination and the earlier statement is
inconsistent with the statement offered at trial. Ariz. R. Evid. 801(d)(1)(A);
see State v. Hernandez, 232 Ariz. 313, 322, ¶ 41 (2013) ("As a preliminary
matter, however, the court must be persuaded that the statements are
indeed inconsistent.") (citation omitted); State v. Navallez, 131 Ariz. 172, 174
(App. 1981) (affirming "the long established rule that in order for a prior




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                           Decision of the Court

statement to be admitted for impeachment it must directly, substantially,
and materially contradict testimony in issue.").

¶10          During redirect, the State's criminalist rejected the defense's
theory—that Byers' DNA was transferred to M.H.'s vagina by a shared
towel—as inconsistent with the amount of Byers' DNA found on M.H.'s
vagina twelve hours after her shower. Byers objected to the testimony as
inconsistent with the criminalist's prior statements, so the trial court
permitted Byers to cross-examine the witness a second time. When
confronted with her admission during a defense interview that Byers' DNA
could have been found on the victim due to the secondary transfer of DNA
through the towel, the criminalist agreed it was possible.

¶11           The next day, Byers filed a motion, arguing that emails
between the prosecutor and the criminalist should be admitted as prior
inconsistent statements. 4 During oral argument, Byers argued for
admission of the criminalist's prior statement that "[a]ll the defense has to
ask me is could the DNA have gotten [on M.H.'s underwear] from the
hamper and I would say yes" as a prior inconsistent statement. The State
argued that the statements were not inconsistent because one concerned the
possibility of secondary transfer of DNA within a laundry hamper; the
other through a towel. The trial court precluded the admission of the
exhibits as inadmissible hearsay.

¶12           On appeal, Byers argues that the criminalist's trial testimony
was inconsistent with her prior statement that Byers' DNA was found on
the victim through secondary transfer of DNA. We disagree. As a
threshold matter, Byers failed to include the emails in the record on appeal.
"When the record is not complete, we must assume that any evidence not
available on appeal supports the trial court's actions." State v. Lavers, 168
Ariz. 376, 399 (1991). Even so, the criminalist's trial testimony followed her
previous statement because she acknowledged that the secondary transfer
of DNA under defense's towel theory "is possible." The alleged new
opinion offered during redirect concerned a more specific question,
different from Byers' hypothetical. Thus, we cannot say that the trial court
abused its discretion by precluding the criminalist's prior statement.




4      Byers also argued at trial that the emails constituted an admission by
a party opponent, but he does not raise that issue on appeal.


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                             STATE v. BYERS
                            Decision of the Court

¶13            Even assuming there was error, it was harmless. Byers cross-
examined the criminalist twice about her opinions, obtaining consistent
concessions both times. He also presented his own DNA expert to rebut
the criminalist's opinion that the DNA evidence was more consistent with
the victim's story. While Byers' DNA expert disagreed with the criminalist's
opinion, even his own expert could not say how likely the towel transfer
theory was, qualifying her opinion on it as "possible." For these reasons,
any error in excluding the email messages as prior inconsistent statements
was harmless.

II.           Willits Instruction

¶14            Last, Byers argues that the trial court erred by denying his
request for a Willits instruction. A defendant is entitled to a Willits
instruction when: "(1) the state 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, 152, ¶ 18 (2014) (quoting State v. Smith, 158 Ariz. 222, 227 (1988)). A
trial court's ruling on a Willits instruction is reviewed for an abuse of
discretion. Glissendorf, 235 Ariz. at 150, ¶ 7.

¶15            At trial, Byers argued for a Willits instruction due to the
police's failure to preserve his belt, clothes, bedding, towels from the house;
to search for a condom; and to check M.H.'s bedroom doorknob for Byers'
fingerprints. The trial court denied the request. The court reasoned that
there would be no exculpatory value to collecting Byers' bedding since one
would expect to find his DNA on it and there had been testimony that M.H.
spent time in his bedroom before the assault. As to the condom, the court
credited the testimony from Byers' ex-wife who stated he never wore one.
The court also said there was no testimony regarding the victim's bedroom
doorknob or if her door even had a doorknob.

¶16           Byers does not show or argue how preservation of these items
would have any tendency to exonerate him. Byers and M.H. lived in the
same home, so the presence of his and her DNA on these items would have
been neither exculpatory nor incriminating. Additionally, M.H. testified
that her eyes were closed during the assault, so she did not know whether
Byers was wearing a belt, what he was wearing, or whether he used a
condom. Further, Byers fails to argue (let alone demonstrate) how the
failure to preserve these items prejudiced him. Therefore, we find there
was no abuse of discretion.




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                         STATE v. BYERS
                        Decision of the Court

                            CONCLUSION

¶17         For the foregoing reasons, we affirm Byers' conviction and
sentence.




                     AMY M. WOOD • Clerk of the Court
                     FILED: AA




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