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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              KENNETH WAYNE BIRCHETT, JR., Appellant.

         Nos. 1 CA-CR 14-0602, 1 CA-CR 15-0442 (Consolidated)
                          FILED 6-2-2016


           Appeal from the Superior Court in Yavapai County
                       No. V1300CR201280017
                The Honorable Michael R. Bluff, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Yavapai County Public Defender’s Office, Prescott
By John Napper
Counsel for Appellant
                           STATE v. BIRCHETT
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge John C. Gemmill joined.


P O R T L E Y, Judge:

¶1           Kenneth Wayne Birchett, Jr., appeals his convictions and
sentences for burglary, possession of burglary tools, two counts of
kidnapping, two counts of attempted armed robbery, and three counts of
aggravated assault. Because Birchett has shown no error, we affirm.

            FACTUAL AND PROCEDURAL BACKGROUND

¶2            During an attempted armed robbery in July 2011, a married
couple was assaulted in their Village of Oak Creek home. Although the
assailant was wearing a mask, the male victim pulled the mask down, saw
the assailant’s face, and was able to describe that person to a police artist,
who prepared a composite sketch of the suspect’s face.

¶3            After discovering a fingerprint on a nearby bucket, which
matched Birchett’s fingerprint, the Yavapai County Sheriff’s Office began
investigating Birchett. The assigned detective believed Birchett’s driver’s
license picture was “very similar” to the composite sketch.

¶4             Birchett’s cell phone records placed him in the Village of Oak
Creek the night before the attempted robbery, and in Camp Verde about an
hour and a half after the attempted robbery. Further investigation revealed
that Birchett frequented the casino where the male victim was a high-stakes
gambler; that Birchett was in financial distress at the time of the home
invasion; and that Birchett had moved to North Dakota a month or two after
the attempted robbery.

¶5            Birchett was arrested, and search warrants were obtained for
buccal swabs and to search his North Dakota trailer. During a search of his
trailer, deputies seized a Bulldog Pug Charter Arms .44 special revolver.
Birchett was charged, and went to trial.

¶6             In addition to testimony about the investigation by the
sheriff’s office, the jury heard testimony from the Department of Public
Safety (“DPS”) supervising criminalist, who testified that Birchett’s DNA



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                            STATE v. BIRCHETT
                            Decision of the Court
profile matched the DNA found in the interior of a tip of a finger from a
black rubber glove, which was found inside of the victims’ house. A DPS
firearms and tool-mark examiner testified that the handgun seized from
Birchett’s trailer was one of three types of firearms that could have fired a
bullet fragment found on the victims’ kitchen counter, and the only one of
those types of firearms that could have produced the burn marks on the
male victim’s t-shirt.

¶7             The jury found Birchett guilty as charged, found eight of the
nine offenses were dangerous, and found multiple aggravating factors. The
trial court sentenced him to aggravated, concurrent and consecutive prison
terms totaling 30 years. Birchett filed a timely notice of appeal from the
convictions and sentences.1 We have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A).

                               DISCUSSION

       A.     Willits Instruction

¶8            Birchett argues the trial court abused its discretion by denying
his request for an instruction under State v. Willits, 96 Ariz. 184, 393 P.2d
274 (1964). He argues lost evidence would have had a tendency to
exonerate him.

¶9            At the end of the case, Birchett asked for a Willits instruction.
He wanted the instruction because the police did not keep the surveillance
videos from nearby businesses along potential escape routes. Birchett
argues the videos had a tendency to exonerate him because they would not
show him, but would show another person fitting the suspect’s description.
He also asked for a Willits instruction on a missing silent-witness report,
arguing the missing report would have shown that the witness overheard
another person talking about committing the offense.

¶10           The trial court denied the requests, explaining that it had
reviewed the testimony about the videos and did not believe that the videos
would have had a tendency to exonerate Birchett. The court also found that
there was no prejudice from the loss or destruction of either the videos or
the silent-witness report.



1 The court then held a restitution hearing and issued its order. Birchett
filed a timely delayed notice of appeal from that order, and the cases were
consolidated for appeal. Other than challenging his convictions, Birchett
does not otherwise challenge the restitution ordered.

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                            STATE v. BIRCHETT
                            Decision of the Court
¶11            A Willits instruction allows the jury to draw an inference that
the lost or destroyed evidence would have been unfavorable to the State.
State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975 P.2d 75, 93 (1999). A
defendant is entitled to a Willits instruction upon proving 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. Glissendorf, 235 Ariz. 147, 150, ¶ 8, 329 P.3d 1049, 1052
(2014) (citations omitted). To prove that evidence has a tendency to
exonerate, the defendant cannot “simply speculate about how the evidence
might have been helpful.” Id. at ¶ 9. Rather, the defendant must show “a
real likelihood that the evidence would have had evidentiary value.” Id.
We review a court’s refusal to give the instruction for abuse of discretion.
Fulminante, 193 Ariz. at 503, ¶ 62, 975 P.2d at 93 (citation omitted).

¶12           Sergeant Alex Jaramillo testified that he collected surveillance
videos from three nearby businesses capturing activity for 24 to 48 hours
around the time of the home invasion. He testified that he mistakenly failed
to put the videos into evidence before he left the unit conducting the
investigation. He testified, however, that a deputy assisting in the
investigation had reviewed all of the videos for a man matching the
suspect’s description, and found none, other than a man wearing a black
backpack, who appeared in a video retrieved from a Shell gas station.
Another deputy contacted the man depicted in the Shell video, but
eliminated him as a suspect because his skin was lighter and he was thinner
than the description of the suspect.

¶13            The deputy printed a still photograph of the man with the
backpack, and six still photographs from the Shell gas station video were
disclosed to the defense before trial, but not introduced at trial. The trial
court, after reviewing the record, could reasonably conclude that the videos
— which showed only portions of some possible escape routes — would
not have had any tendency to exonerate Birchett, and, as a result, did not
abuse its discretion in denying a Willits instruction. See State v. Bolton, 182
Ariz. 290, 309, 896 P.2d 830, 849 (1995) (holding that denial of Willits
instruction was appropriate for destruction of taxicab which had been
extensively photographed and tested, with results provided to defense
counsel); State v. Torres, 162 Ariz. 70, 76, 781 P.2d 47, 53 (App. 1989) (holding
that proof of the absence of fingerprints on heroin packet would not have
materially aided defense, and accordingly the court did not abuse its
discretion in denying Willits instruction).




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                             STATE v. BIRCHETT
                             Decision of the Court
¶14           Sergeant Jaramillo also testified that a silent-witness report
missing from the record prompted officers to interview J.M. The missing
report was similar to a later silent-witness report in the record, which
indicated the witness reported that he heard people discussing J.M.’s
involvement in the crime. Law enforcement eliminated J.M., the person
named in the two silent-witness reports, as a suspect after further
investigation, including a photo line-up and DNA testing. And before trial,
the defense informed the court that he was not interested in obtaining the
names of the silent witnesses, but was interested only in the information
provided by those witnesses. Because the substantial equivalent of the
missing report, the later silent-witness report, was presented at trial, the
court did not abuse its discretion by denying a Willits instruction. See State
v. Hansen, 156 Ariz. 291, 294-95, 751 P.2d 951, 954-55 (1988) (holding that
court did not abuse its discretion in denying Willits instruction when
similar photographs to those missing were presented at trial); see also State
v. Willcoxson, 156 Ariz. 343, 346, 751 P.2d 1385, 1388 (App. 1987) (stating
“failure to pursue every lead or gather every conceivable bit of physical
evidence” does not require Willits instruction).

       B.     Other-Act Evidence

¶15          Birchett also argues that the trial court abused its discretion in
admitting evidence of a civil lawsuit against him for failing to repay a loan
under Arizona Rule of Evidence (“Rule”) 404(b). Although the lawsuit was
used as evidence of motive for the attempted armed robbery, he argues
admission of the evidence was error because the civil lawsuit was filed and
served after the date of the attempted robbery, and the settlement and
default occurred even later.

¶16            Other-act evidence is admissible under Rule 404(b) if the State
proved that the defendant committed the other act; it is offered for a
purpose other than to show propensity to commit the charged act; its
relevance is not substantially outweighed by the potential for unfair
prejudice under Rule 403; and the court provides a limiting instruction if
requested under Rule 105. Ariz. R. Evid. 404(b); State v. Mott, 187 Ariz. 536,
545, 931 P.2d 1046, 1054 (1997). We review the admission of Rule 404(b)
other act evidence for an abuse of discretion. State v. Forde, 233 Ariz. 543,
558-59, ¶ 42, 315 P.3d 1200, 1215-16 (2014) (citation omitted).

¶17             The trial court granted the State’s pretrial motion to admit
evidence about the lawsuit, finding that the evidence was offered to show
motive, a proper purpose under Rule 404(b); it was relevant; its probative
value was high; and it had little or no danger of unfair prejudice. As a
result, at trial, the plaintiff in the civil lawsuit testified that she had loaned


                                        5
                            STATE v. BIRCHETT
                            Decision of the Court
Birchett $8,000 to purchase a motor home in April 2011, he had failed to
make any payments in June, and failed to comply with her demand for
payment, which resulted in a lawsuit being filed against him on August 1,
2011.

¶18            The plaintiff also testified that in Birchett’s answer, which was
filed on August 19, 2011, he explained that he had “panicked with [his]
finances during the month of June and July;” gambled what was left from
his pay check in a failed attempt to get money to repay the loan; and was
taking a job in North Dakota that should allow him to repay it in full by the
end of October. The plaintiff and Birchett reached an agreement in
November that Birchett would repay the loan at a rate of $2,075 a month for
four months, beginning in December. She testified without objection that
she received one more payment from him. And the court instructed the
jury that evidence of the lawsuit could be used only to establish defendant’s
motive, and not to show that he committed the charged offense.

¶19            The trial court did not abuse its discretion by admitting the
evidence about the lawsuit under Rule 404(b). The evidence of the lawsuit
and Birchett’s response was probative of his motive to engage in the
charged crimes. Moreover, and without citing to any authority, Birchett is
wrong to suggest that other act evidence must relate to events that pre-date
the alleged crimes. See State v. Terrazas, 189 Ariz. 580, 588, 944 P.2d 1194,
1202 (1997) (Martone, J., dissenting) (noting that “[t]here is no per se
exclusionary rule for ‘other act’ evidence offered for a proper purpose.”)
(citation omitted). And our review of the record shows the State used the
evidence solely to demonstrate Birchett’s motive for the attempted armed
robbery, his debt, and when he was unable to pay it in June and July he
panicked, and not for any improper or unfairly prejudicial purpose.
Birchett, in turn, argued that the settlement agreement, and his payment of
the first installment of $2,075 in December 2011, showed that he had
developed a successful plan to repay his debt by obtaining a high-paying
job in North Dakota. The jury, as a result, had to determine whether the
debt leading to the lawsuit demonstrated a motive for his actions.
Consequently, based on the record, the court did not abuse its discretion in
admitting this evidence under Rule 404(b).




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                         STATE v. BIRCHETT
                         Decision of the Court
                            CONCLUSION

¶20          For the foregoing reasons, we affirm Birchett’s convictions
and sentences.




                                :AA




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