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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  TIMOTHY MARK CHACON, Appellant.

                             No. 1 CA-CR 19-0314
                               FILED 3-12-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-116255-001
                  The Honorable Gregory Como, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nathan Curtisi
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                           STATE v. CHACON
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined.


P E R K I N S, Judge:

¶1             Timothy Mark Chacon appeals his conviction for armed
robbery. We affirm the conviction but modify the sentencing order to
correctly reflect the verdict.

              FACTUAL AND PROCEDURAL HISTORY

¶2           Just before 3:00 a.m., M.O. (the “victim”) walked behind an
apartment complex with his backpack, keys, wallet, headphones, and
iPhone. He listened to music through his headphones as Chacon walked
toward him with a bicycle.

¶3            The victim heard Chacon speak but “didn’t really hear” what
he said through the headphones and kept walking. Shortly after, Chacon
reappeared, this time riding the bike. Chacon pointed what appeared to be
a revolver at the victim and demanded his belongings, which the victim
placed in his backpack. Chacon took the backpack and ordered the victim
to walk away and not look back. The victim made his way to a nearby bar,
where he borrowed a stranger’s phone to call 9-1-1.

¶4            Shortly thereafter, police responded and tracked the iPhone
to a nearby apartment complex using a location app on the phone. Police
drove to the complex and used the phone’s ringer to confirm its location in
a ground-floor apartment. An officer peered through the window and
watched Chacon retrieve the still-ringing phone. Police then cleared the
apartment, detaining Chacon and several other people inside. Officers
recovered an iPhone, backpack, and other belongings. Police also recovered
a silver pellet gun that looked like a revolver and several bikes. Chacon
provided a false name to police. Chacon’s DNA was found on the gun and
bikes, but not on the victim’s iPhone.

¶5            Police drove the victim to the complex, where he waited until
officers brought Chacon and the apartment’s occupants over for the victim
to make a possible one-on-one identification. The victim did not
immediately identify Chacon but asked to see him again and then identified


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                            STATE v. CHACON
                            Decision of the Court

him based on his pants and chest tattoo. The victim later stated the gun
recovered from the apartment looked similar to the one pointed at him. The
victim also confirmed that the iPhone recovered from the apartment was
his. Police did not digitally search the victim’s iPhone.

¶6            The State indicted Chacon on one count of armed robbery, a
class two felony (Count One), and one count of false reporting to a law
enforcement agency, a class one misdemeanor (Count Two). Chacon pled
guilty to Count Two, but his first trial on Count One resulted in a mistrial.
He was then convicted on Count One in the second trial.

¶7            During both trials, Chacon requested a Willits jury instruction
based on his argument that the State had insufficiently examined the iPhone
and not given him an adequate opportunity to examine it. The court denied
the requested instruction each time. Chacon timely appealed his armed
robbery conviction.

                               DISCUSSION

¶8            Chacon argues on appeal that the trial court erred in denying
his request for a Willits jury instruction, which we review for an abuse of
discretion. State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). “A trial court
abuses its discretion when it misapplies the law or predicates its decision
on incorrect legal principles.” Taylor v. Cruikshank, 214 Ariz. 40, 43, ¶ 10
(App. 2006) (quoting State v. Jackson, 208 Ariz. 56, 59, ¶ 12 (2004)).

¶9             A Willits instruction allows the jury to find that “the State has
lost, destroyed, or failed to preserve evidence whose contents or quality are
important to the issues in [the] case,” weigh the explanation given, and
draw an inference against the State if the explanation is inadequate. State v.
Willits, 96 Ariz. 184, 187 (1964); Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim.
42 (5th ed. 2019).

¶10           A Willits instruction is only provided where the defendant
shows that: “(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.” Glissendorf, 235 Ariz. at 150,
¶ 8 (quoting State v. Smith, 158 Ariz. 222, 227 (1988)). “To show that evidence
had a ‘tendency to exonerate,’ the defendant must do more than simply
speculate about how the evidence might have been helpful.” Id. at ¶ 9. “A
Willits instruction is not given merely because a more exhaustive
investigation could have been made.” State v. Murray, 184 Ariz. 9, 33 (1995).




                                       3
                           STATE v. CHACON
                           Decision of the Court

¶11           Chacon has not shown that the State lost or destroyed
evidence. Nothing in the record suggests that Chacon’s counsel asked to
examine the victim’s iPhone. Chacon instead complains about the chain of
custody, but “[f]laws in the chain of custody normally go to the weight the
jury gives to the evidence, not to its admissibility into evidence.” State v.
Morales, 170 Ariz. 360, 365 (App. 1991). Thus, Chacon never lost any
“opportunity” to examine the iPhone. See State v. Broughton, 156 Ariz. 394,
399 (1988) (delayed testing of a blade for blood and fingerprints did not
constitute destruction of evidence supporting a Willits instruction).

¶12           Beyond that, Chacon has not shown how the iPhone’s
contents had a “tendency to exonerate” him. On cross-examination, a
detective merely speculated that extracting location data from the iPhone
could “[p]ossibly” have provided more specific information. But Chacon
did not further develop that line of questioning, elicit testimony from other
witnesses, or proffer a basis on which the court could find that the evidence
had a tendency to exonerated him. See State v. Smith, 158 Ariz. 222, 227
(1988) (finding that defendant was not entitled to a Willits instruction where
nothing suggested lost evidence fit defendant’s theory). He had an
unfettered chance to question police officers about what data might have
been recovered from the phone and what it might have shown. The cell-
tower data presented at trial corroborated the victim’s testimony
concerning his (and his iPhone’s) location leading up to the robbery. The
court did not abuse its discretion.

¶13           On our own review of the record, we note that the trial court’s
sentencing order incorrectly states that Chacon was convicted of armed
robbery with a deadly weapon. While the jury verdict states that he was
only convicted of “armed robbery,” the jury was only instructed as to the
elements of an armed robbery with a simulated deadly weapon, and the
State only argued at trial that Chacon used a simulated deadly weapon. A
defendant is entitled to a judgment that reflects the verdict. State v.
Dowthard, 92 Ariz. 44, 49 (1962). Accordingly, we modify the written
sentencing memorandum to reflect the conviction for “armed robbery with
a simulated deadly weapon.” See State v. Jonas, 164 Ariz. 242, 245 n.1 (1990)
(modifying written judgment to reflect the actual judgment entered).




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                  STATE v. CHACON
                  Decision of the Court

                     CONCLUSION

¶14   We affirm the conviction as modified.




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




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