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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                             No. 1 CA-CR 19-0123
                               FILED 12-12-2019


          Appeal from the Superior Court in Maricopa County
                       No. CR2018-123510-001
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant


                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.
                             STATE v. REILLY
                            Decision of the Court

W I N T H R O P, Judge:

¶1             Timothy Michael Reilly (“Appellant”) appeals his convictions
and sentences for burglary in the second degree and false reporting to a law
enforcement agency. Appellant’s counsel has filed a brief in accordance
with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738
(1967); and State v. Leon, 104 Ariz. 297 (1969), stating he has searched the
record for error but has found no arguable question of law that is not
frivolous. Appellant’s counsel therefore requests that we review the record
for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999)
(stating that this court reviews the entire record for reversible error). This
court allowed Appellant to file a supplemental brief in propria persona, and
he has done so, raising issues that we address.

¶2             We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and 13-4033(A). Finding no reversible
error, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶3            A grand jury issued an indictment charging Appellant with
Count I, burglary in the second degree, a class three felony, and Count II,
false reporting to a law enforcement agency, a class one misdemeanor. See
A.R.S. §§ 13-1507, -2907.01. The State alleged the existence of seven non-
dangerous historical prior felony convictions and numerous aggravating
circumstances.

¶4           Before trial, Appellant’s counsel sought a competency
determination, see Ariz. R. Crim. P. (“Rule”) 11, and the parties stipulated
to a determination of competency based on the examinations and reports of
two licensed clinical psychologists. The trial court subsequently found
Appellant competent to proceed.

¶5            At trial, the State presented the following evidence: At
approximately 11:55 p.m. on May 11, 2018, Officer Fluellen of the Scottsdale
Police Department and his partner responded to the report of a burglar
alarm at the residence of E.M. and T.M. (“the homeowners”) in Scottsdale.
The officers arrived at the home, but received no response to a knock on the


1     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64 (App. 1994).


                                      2
                            STATE v. REILLY
                           Decision of the Court

door, observed no lights on inside the home, and found no signs of forced
entry during a cursory check of the home’s perimeter, although the officers
were unable to access any rear entry points to the home. The officers
concluded the call was a false alarm.

¶6            A few hours later, at approximately 6:56 a.m. on May 12,
another alarm triggered at the home, and Officer Johnson responded soon
thereafter. Outside the residence, Officer Johnson spoke with the
homeowners’ daughter, who had arrived shortly before the officer and
advised him that the homeowners were out of town. The officer also
noticed a bicycle that appeared to be out of place because there were no
other vehicles around, and the daughter confirmed the bicycle did not
belong to the homeowners. Officer Johnson called for backup.

¶7            Additional police officers arrived and set up a perimeter
around the residence. Officer Johnson, along with Officer Good and
Sergeant Stumpf, entered the house and began clearing it room by room.
The officers discovered Appellant in the master bedroom, where they
observed numerous items piled on the bed, including jewelry, loose coins,
and collector coins that were later determined to belong to the homeowners.
A jewelry chest on the side of the bed had been opened, and numerous
drawers in the room had been pulled out. The officers also found money
that belonged to the homeowners on Appellant’s person. Additionally,
Appellant had rings that did not fit his fingers on both his left and right
hands, as well as a bracelet on his left wrist. T.M. later confirmed that the
jewelry belonged to her.

¶8            Officer Johnson noticed that an approximately two-foot by
three-foot hole had been cut in the bedroom wall next to the pool room. The
officers saw drywall chunks and dust on the floor near the hole. Although
all other doors in the house were locked when the officers arrived, the
sliding glass door to the pool room was unlocked and large umbrellas had
been opened and placed in front of the sliding glass door in a manner that
obstructed the view of the interior of the pool room. Additionally, several
motion sensors in the home had been pulled down and the wires
disconnected.

¶9            Appellant appeared extremely grungy and had drywall dust
on his shirt. His speech was slow, thick, and deliberate, and he mumbled
and slurred his words, while spitting and hacking. He also appeared
lethargic and was sweating profusely. He told the officers the home
belonged to his sister and that he had been packing. He had no
identification on his person, and when asked his name, he identified


                                     3
                            STATE v. REILLY
                           Decision of the Court

himself as “Steven Michael Antwil” and claimed his birth date was
December 12, 1979. Another officer who arrived at the scene recognized
him, however, allowing the police to eventually ascertain his true name and
date of birth—January 25, 1982.

¶10           When E.M. returned to the home to repair it and place things
back in order, he discovered some items that did not belong to either of the
homeowners. These items were turned over to the police, and included a
key chain with several silver keys, another key with filed-down teeth, two
phones, a knife with drywall residue on it, and a bus pass dated May 11,
2018.

¶11           The homeowners’ daughter testified that, on May 11, she was
contacted by the alarm company, which informed her the sensors in the
poolroom had gone off. She arrived at the residence after midnight, but the
police had already been there, and she left. She returned approximately
seven hours later after she was notified the sensor in the master bedroom
had gone off. She had last been at the home a few weeks earlier and had
checked all the rooms and made sure everything was locked. Neither the
daughter nor the homeowners had ever met Appellant, much less given
him permission to enter the home, wear T.M.’s jewelry, or take items from
the home.

¶12            The jury found Appellant guilty of both counts as charged.
The jury also found the existence of three aggravating circumstances: (1) the
offense caused physical, emotional, or financial harm to the victim(s); (2)
the offense involved the taking of or damage of property in an amount
sufficient to be an aggravating circumstance; and (3) Appellant committed
the offense as consideration for the receipt, or in the expectation of the
receipt, of anything of pecuniary value. Appellant then admitted having
seven prior felony convictions.

¶13           At sentencing, the court sentenced Appellant as a category
three offender to the presumptive term of 11.25 years’ imprisonment for
Count I, with credit for 277 days of presentence incarceration. For Count II,
the court entered a terminal disposition, sentencing Appellant to six
months’ incarceration in the county jail, while crediting him for time
served. Appellant filed a timely notice of appeal.

                                ANALYSIS

¶14          Appellant raises several issues in his supplemental brief. We
address each of Appellant’s arguments.



                                     4
                             STATE v. REILLY
                            Decision of the Court

       I.     Appellant’s Request for a Willits Instruction

¶15          Appellant argues the trial court should have instructed the
jury pursuant to State v. Willits, 96 Ariz. 184 (1964). He argues that he
“requested a Willits instruction due to evidence of a previous breach of the
home which went unexplained[, and a]ll contents of [the] home were not
provided to the defense for independent analysis.”

¶16            In this case, at the October 19, 2018 pretrial settlement
conference, Appellant himself posited a theory that the earlier alarm may
have been caused by someone else breaking in, and he noted that the police
had turned the items found on the bed over to the homeowners. He then
argued that “my team never had a chance to do any testing on any of that
stuff to determine if the people that came into the home the previous
evening could have had something to do with that or played a part in any
of that stuff.” After further discussion, he stated, “[F]or some reason I’m
drawn to the concept of a [Willits] instruction. I mean, who’s to say that the
damage and the things piled on the bed were mine . . . ?” At a subsequent
settlement conference/final trial management conference held January 7,
2019, Appellant again broached the subject of a Willits instruction, asking,
“[I]sn’t there like breathing room for a [Willits] instruction? This stuff was
all given back to the homeowner without fingerprints or any independent
testing being done. . . . So how can the Prosecution accuse me of being the
one who put the stuff on the bed?” At trial, the trial court did not provide
the jury with a Willits instruction.

¶17             A Willits instruction tells jurors they may infer from the
State’s loss or destruction of material evidence that the evidence would
have been unfavorable to the State. See State v. Fulminante, 193 Ariz. 485,
503, ¶ 62 (1999). Nevertheless, a defendant is not automatically entitled to
a Willits instruction based on destruction or non-retention of evidence. State
v. Murray, 184 Ariz. 9, 33 (1995). “To be entitled to a Willits instruction, a
defendant must prove 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.” State v. Smith, 158 Ariz.
222, 227 (1988) (citation omitted). To show evidence had a “tendency to
exonerate,” a defendant cannot simply speculate about how the evidence
may have been helpful. State v. Glissendorf, 235 Ariz. 147, 150, ¶ 9 (2014)
(citations omitted). Instead, “there must be a real likelihood that the
evidence would have had evidentiary value.” Id. (citations omitted).
Further, Willits only provides for a duty to preserve evidence, not create it,
and such an instruction is not called for merely because a more exhaustive



                                       5
                             STATE v. REILLY
                            Decision of the Court

investigation might have been made. See generally State v. Walters, 155 Ariz.
548, 550-51 (App. 1987).

¶18            Here, Appellant does not argue, much less show, that the
defense requested the items found on the bed be turned over for analysis.
Moreover, even had those items been tested and fingerprints or DNA from
the homeowners, their daughter, or other persons been found to exist,
Appellant does not argue or show how such information would have been
relevant, much less potentially exculpatory, and fails to show that the
State’s failure to either test the items or turn them over for testing by the
defense prejudiced him in any way. See State v. Bolton, 182 Ariz. 290, 308-
09 (1995); State v. Reffitt, 145 Ariz. 452, 462 (1985). On this record, there is
no indication the State lost, destroyed, or failed to preserve material
evidence, and the court did not reversibly err by declining to give a Willits
instruction on this basis.

       II.    The State’s Alleged Failure to Turn Over a Video

¶19             Appellant also contends the May 11 bus pass found by the
homeowner led the State to subpoena Valley Metro—the bus company—
for video surveillance that might link Appellant’s whereabouts at the time
of the first alarm to the area near the homeowners’ house. He claims that
any video obtained was “never provided as discovery” and “never
surrendered to the defense.”

¶20           The record is unclear whether the State ever actually obtained
the surveillance video Appellant alleges it sought and, if so, whether the
video might have contained footage of Appellant. Appellant does not
actually claim the defense ever sought to obtain a copy of the alleged video,
and he does not explain how the video, if it exists, is potentially
exculpatory. He does, however, claim that “[s]aid video clearly depicts
[Appellant] in possession of the jewelry the homeowner implied came from
her home,” indicating an apparent argument that T.M. may have
misidentified one or more of the items of jewelry as belonging to her.2

¶21         But even assuming arguendo that the alleged video does exist
and shows what he claims, it would still not be potentially exculpatory.
Appellant was found by police officers in the homeowners’ home, without
the homeowners’ permission, standing near a recently created hole in the


2     Appellant does not explain how he knows what the alleged video
shows despite his claim that “the video was never surrendered to the
defense.”


                                       6
                             STATE v. REILLY
                            Decision of the Court

wall and covered in drywall dust, and in possession of a knife with drywall
residue on it and numerous items belonging to the homeowners. Moreover,
he lied about his identity when questioned by the police. The evidence
against Appellant is so strong that any alleged error due to claimed
misidentification of one or more items of jewelry cannot be said to have
affected the jury’s verdict. See generally State v. Laird, 186 Ariz. 203, 206
(1996) (finding the evidence so strong, and the defense so incredible, that
the court could say with certainty that the defendant was not denied a fair
trial); Reffitt, 145 Ariz. at 462 (concluding that, even if the appellant had
been entitled to a Willits instruction, he was not prejudiced because there
existed “no reasonable possibility that the assigned error contributed to the
jury’s verdict”). Appellant has not shown that the evidence he seeks would
have been helpful to his defense, see State v. Miller, 108 Ariz. 441, 444 (1972),
and we find no error, much less fundamental error.

       III.   Alleged Prosecutorial Misconduct

¶22          Appellant also argues the prosecutor committed misconduct
because she withheld the alleged video from the bus stop and ostensibly
suborned perjury by allowing T.M. to testify that the jewelry discovered on
Appellant’s person belonged to her.

¶23            “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 [the] defendant a fair trial.’” State v. Moody,
208 Ariz. 424, 459, ¶ 145 (2004) (citation omitted).

¶24           As we have noted, even if we assume arguendo that
Appellant’s unsupported claims are true, no reasonable likelihood exists
that any alleged misconduct could have affected the jury’s verdict.

       IV.    Alleged Ineffective Assistance of Counsel

¶25            To the extent that Appellant’s arguments implicate a claim
that his trial counsel provided him with ineffective assistance, we do not
address that aspect of his arguments. Any argument challenging the
effectiveness of trial counsel on direct appeal must be brought through Rule
32 proceedings. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).

       V.     Presentence Incarceration Credit

¶26          Our review of the record indicates Appellant should have
received 276 days of presentence incarceration credit for Count I, not 277


                                       7
                              STATE v. REILLY
                             Decision of the Court

days. However, the State has not filed a cross-appeal, and relying on State
v. Dawson, 164 Ariz. 278, 286 (1990), we do not correct this error.

      VI.    Other Issues

¶27          We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537, ¶ 30. The
evidence presented at trial was substantial and supports the verdict.
Appellant was represented by counsel at all stages of the proceedings and
was given the opportunity to speak at sentencing. The proceedings were
conducted in compliance with his constitutional and statutory rights and
the Arizona Rules of Criminal Procedure.

¶28            After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant has thirty days from the
date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

                                CONCLUSION

¶29          Appellant’s convictions and sentences are affirmed.




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




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