                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                               Appellee,

                                   v.

                    ROBERT CHARLES GLISSENDORF,
                             Appellant.

                          No. CR-13-0388-PR
                          Filed July 18, 2014

            Appeal from the Superior Court in Pima County
               The Honorable Michael O. Miller, Judge
                        No. CR20112756-001
                   REVERSED AND REMANDED

             Opinion of the Court of Appeals, Division Two
                233 Ariz. 222, 311 P.3d 244 (App. 2013)
                              VACATED

COUNSEL:

Lori J. Lefferts, Pima County Public Defender, David J. Euchner (argued),
Katherine A. Estavillo, Assistant Public Defenders, Tucson, for Robert
Charles Glissendorf

Thomas C. Horne, Arizona Attorney General, Robert L. Ellman, Solicitor
General, Joseph T. Maziarz (argued), Chief Counsel, Criminal Appeals
Section, Phoenix, for State of Arizona

CHIEF JUSTICE BALES authored the opinion of the Court, in which, VICE
CHIEF JUSTICE PELANDER, JUSTICE BERCH, JUSTICE BRUTINEL, and
JUSTICE TIMMER joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1           Fifty years ago, this Court held that if the state fails to
preserve evidence that is potentially exonerating, the accused might be
                         STATE V. GLISSENDORF
                           Opinion of the Court

entitled to an instruction informing the jury that it may draw an adverse
inference from the state’s action. See State v. Willits, 96 Ariz. 184, 191, 393
P.2d 274, 279 (1964). Today, we reaffirm this principle. Because the trial
court erred in refusing to give a Willits instruction and the State has not
established that the error was harmless, we reverse the convictions and
sentences and remand for a new trial.

                                      I.

¶2             In 2012, Robert Charles Glissendorf was tried for three counts
of child molestation. Count 1 involved his niece, E.G., who testified that
when she was between five and seven years old she awoke one night to find
Glissendorf touching her vagina. This incident occurred between 1997 and
1999, but E.G. did not report it until 2001. That year, a Tucson detective
tape-recorded his interview of E.G. about the incident and summarized the
interview in a written report. A Child Protective Services (“CPS”)
employee was also present and recorded the interview on video. The State
initially decided not to prosecute. Six to twelve months later, the Tucson
Police Department (“TPD”), consistent with its then-existing policy,
destroyed its recording. The CPS recording was also destroyed.

¶3            Counts 2 and 3 involved similar molestations reported in 2010
by I.K., who was then five years old. I.K. testified that, sometime between
2009 and 2010, she and her sister, A.K., were each molested by Glissendorf
one night when he slept over at their mother’s house. Count 2 was based
on the molestation of I.K., and Count 3 concerned the molestation of A.K.
Because A.K. was not awake during the incident, I.K.’s testimony provided
the evidence for both counts.

¶4             Over Glissendorf’s objection, the trial court allowed another
witness, C.L., to testify under Evidence Rule 404(c)’s other-act exception
about an alleged incident in Nevada in 1976. C.L. testified that, when she
was six years old, Glissendorf lured her into an apartment with candy,
forced her to lie down on the couch, and touched her vagina. He then gave
her two dollars and let her go. Glissendorf was later arrested in Nevada
but was never charged for this incident.

¶5            At trial, Glissendorf requested a Willits instruction regarding
the destruction of the TPD and CPS recordings of the 2001 interview with
E.G., arguing that the recordings would have been useful in impeaching her

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                          STATE V. GLISSENDORF
                            Opinion of the Court

2012 testimony. The trial court construed Glissendorf’s request as seeking
the following standard jury instruction:

       If you find that the State has lost, destroyed, or failed to
       preserve evidence whose contents or quality are important to
       the issues in this case, then you should weigh the explanation,
       if any, given for the loss or unavailability of the evidence. If
       you find that any such explanation is inadequate, then you
       may draw an inference unfavorable to the State, which in
       itself may create a reasonable doubt as to the defendant’s
       guilt.

Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 10. The court denied the request
because the recordings had not been maliciously destroyed and Glissendorf
had not shown that they contained exculpatory evidence.

¶6             The jury convicted Glissendorf on Counts 1 and 2 and
acquitted him on Count 3; he was sentenced to consecutive prison terms
totaling thirty-four years. Glissendorf appealed and raised several issues,
including the denial of a Willits instruction and the admission of C.L.’s
testimony under Rule 404(c). The court of appeals concluded that the trial
court erred in refusing to give a Willits instruction, but the court reversed
only the conviction and sentence on Count 1. State v. Glissendorf, 233 Ariz.
222, 233–34 ¶ 32, 311 P.3d 244, 255–56 (App. 2013). As for the admission of
C.L.’s testimony, the court of appeals found the trial court had erred in one
aspect of its Rule 404(c) analysis; because the court of appeals could not
determine whether this error affected the trial court’s ultimate ruling,
however, it remanded to allow the trial court to clarify this point. Id. at 235
¶¶ 39–40, 311 P.3d 258.

                                       II.

¶7             We review rulings regarding a Willits instruction for abuse of
discretion. See State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). In
Willits, this Court held that a defendant is entitled to an adverse-inference
instruction when the state loses or destroys evidence that would have been
useful to the defense, even if that destruction is innocent:

             We think that the rule permitting an inference is not
       based only on the notion that the destruction is motivated by

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                          STATE V. GLISSENDORF
                            Opinion of the Court

       a desire to conceal the truth. Evidence, of course, may be
       innocently destroyed without a fraudulent intent simply
       through carelessness or negligence or, as the case might have
       appeared to the jury here, an unwillingness to make the
       necessary effort to preserve it. In any event, the State cannot
       be permitted the advantage of its own conduct in destroying
       evidence which might have substantiated the defendant's
       claim regarding the missing evidence. But the damage to the
       defendant is equally great because the evidence was no longer
       available at the trial by which the facts with certainty could be
       determined.

Willits, 96 Ariz. at 191, 393 P.2d at 279.

¶8             The Court has repeatedly upheld this approach, eventually
fashioning a two-element test: “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, 762 P.2d 509, 514 (1988) (citing State v. Perez, 141 Ariz. 459, 464, 687
P.2d 1214, 1219 (1984)); see also State v. Speer, 221 Ariz. 449, 457 ¶ 40, 212
P.3d 787, 795 (2009).

¶9              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. See, e.g., Speer, 221 Ariz. at 457 ¶ 41, 212 P.3d at
795 (observing that defendant did not show how the evidence would have
exonerated him or even mitigated his participation in the crime); Smith, 158
Ariz. at 227, 762 P.2d at 514 (holding that speculation as to how the evidence
might have been beneficial was not enough); Perez, 141 Ariz. at 464, 687 P.2d
at 1219 (observing that appellant presented no evidence on how the missing
evidence would have helped his defense). In other words, there must be a
real likelihood that the evidence would have had evidentiary value. See,
e.g., State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995) (noting that “[a]
Willits instruction is not given merely because a more exhaustive
investigation could have been made”); State v. Watkins, 126 Ariz. 293, 302,
614 P.2d 835, 844 (1980) (concluding that the evidence had “no evidentiary
value”); State v. Garrison, 120 Ariz. 255, 259, 585 P.2d 563, 567 (1978) (same).




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                          STATE V. GLISSENDORF
                            Opinion of the Court

¶10            The phrase “tendency to exonerate,” however, does not mean
the evidence must have had the potential to completely absolve the
defendant. See State v. Hunter, 136 Ariz. 45, 51, 664 P.2d 195, 201 (1983) (“To
be entitled to a Willits instruction, . . . an accused need not prove that
evidence destroyed by the state would have conclusively established a
defense.”). Rather, as the court of appeals correctly held, a defendant “is
entitled to an instruction if he can demonstrate that the lost evidence would
have been material and potentially useful to a defense theory supported by
the evidence.” Glissendorf, 233 Ariz. at 229 ¶ 17, 311 P.3d at 251. Indeed,
we have previously used the phrase “potentially helpful” interchangeably
with “tendency to exonerate.” See, e.g., Murray, 184 Ariz. at 33, 906 P.2d at
566 (quoting State v. Lopez, 163 Ariz. 108, 113, 786 P.2d 959, 964 (1990)) (“A
Willits instruction is appropriate when the state destroys or loses evidence
potentially helpful to the defendant.”) (internal quotation marks omitted).

¶11           The “tendency to exonerate” test is not the same as that for a
violation of due process. The “failure to preserve potentially useful”
evidence is not a denial of due process unless “a criminal defendant can
show bad faith on the part of the police.” Arizona v. Youngblood, 488 U.S. 51,
58 (1988). Thus, the test for a violation of due process depends on the
subjective intent of law enforcement, while the test for giving a Willits
instruction is explicitly intended to cover innocent destruction. Compare
Youngblood, 488 U.S. at 58, with Willits, 96 Ariz. at 191, 393 P.2d at 279.

¶12           Bad faith can be difficult to prove, while the “tendency to
exonerate” standard is more easily satisfied. See Cost v. State, 10 A.3d 184,
192–94 (Md. 2010); see also Norman C. Bay, Old Blood, Bad Blood, and
Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash.
U. L. Rev. 241, 288 (2008). This difference in the two standards makes sense
in light of the greater consequences that stem from a violation of due
process: “when evidence has been destroyed in violation of the
Constitution, the court must choose between barring further prosecution or
suppressing . . . the State’s most probative evidence.” California v. Trombetta,
467 U.S. 479, 487 (1984). Both of these remedies are more drastic than the
mere adverse inference that jurors may be permitted to draw by a Willits
instruction. Hence, it follows that the bar for issuing a Willits instruction is
lower than that for establishing a violation of due process. See State v.
Youngblood, 173 Ariz. 502, 507, 844 P.2d 1152, 1157 (1993) (“[W]here there is
no bad faith[,] it is fundamentally unfair to bar the state from our courts.
The inference that the evidence may be exculpatory is not strong enough to

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                         STATE V. GLISSENDORF
                           Opinion of the Court

dismiss the case. It is enough to let the jury decide whether to draw such an
inference.”).

¶13            Nonetheless, the State urges us to overrule Willits, essentially
arguing that consequences for the loss or destruction of evidence should
only apply if it were done in bad faith. We decline the State’s invitation. A
consequence for even innocent loss or destruction is necessary both to deter
such action and to ensure that defendants do not bear the burden of the
state’s actions. See Cost, 10 A.3d at 197 (“For the judicial system to function
fairly, one party in a case cannot be permitted to gain an unfair advantage
through the destruction of evidence.”). Moreover, the Willits instruction
takes into account the state’s explanation of the destruction by permitting
jurors to draw an adverse inference only if they “find that any such
explanation is inadequate.” RAJI Stand. Crim. 10.

¶14           As support for its argument that Willits should be overturned,
the State contends that the instruction lacks a statutory or constitutional
basis. The State correctly observes that this Court has never held that
Arizona’s due process clause requires the issuance of Willits instructions.
Instead, the Court has held that the same bad-faith test applies to identify
violations of either the Arizona due process clause or the federal due
process clause. See Speer, 221 Ariz. at 457 ¶ 36, 212 P.3d at 795; Youngblood,
173 Ariz. at 507–08, 844 P.2d at 1157–08.

¶15            Many other state courts, however, have held that their state
constitutions or evidentiary rules require measures similar to a Willits
instruction when the state’s failure to preserve evidence does not involve
bad faith. See Cost, 10 A.3d at 193–95 (describing several states’
approaches). Such holdings recognize that when potentially exonerating
evidence is lost or destroyed, an adverse-inference instruction may be
appropriate because the accused is presumed innocent and the state bears
the burden of proving guilt beyond a reasonable doubt. While jurors
generally are instructed to determine the facts from the admitted evidence,
a Willits instruction permits them to draw an adverse inference from the
loss or destruction of evidence by the state.

¶16           Even if Willits is characterized as a court-adopted rule of
evidence, see id. at 194, we believe that it properly balances the state’s duty
to prove guilt with the defendant’s presumed innocence. We therefore
decline to abrogate a rule that has been part of Arizona law for fifty years

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                         STATE V. GLISSENDORF
                           Opinion of the Court

and has been applied in dozens of cases by this Court and the court of
appeals.

¶17           Alternatively, the State argues that a Willits instruction is
appropriate only if the exculpatory value was apparent when the evidence
was destroyed. In support of this argument, the State cites several court of
appeals’ opinions. See State v. Davis, 205 Ariz. 174, 180 ¶ 37, 68 P.3d 127,
133 (App. 2002); State v. Tinajero, 188 Ariz. 350, 355, 935 P.2d 928, 933 (App.
1997); State v. Walters, 155 Ariz. 548, 551, 748 P.2d 777, 780 (App. 1987).
These cases do not persuasively support the State’s position, however, as
they largely cite each other or the United States Supreme Court’s decision
in Trombetta, which involved a federal due process claim. In assessing
materiality in that context, Trombetta stated “evidence must both possess an
exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” 467 U.S. at 489.

¶18           The Trombetta standard, grounded in the due process clause,
is inapposite for assessing the appropriateness of a Willits instruction,
which, as discussed, does not turn on the subjective intent of the state’s
agents. Thus, to the extent that Arizona courts have implied an apparent
exculpatory value requirement for issuing Willits instructions, the courts
have incorrectly conflated the due process analysis with that for Willits
instructions. We therefore reaffirm that 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.” Smith, 158 Ariz. at 227, 762
P.2d at 514.

¶19           In this case, Glissendorf easily met the “tendency to
exonerate” standard. He noted several differences between E.G.’s story as
recounted in the 2001 police report and her trial testimony more than a
decade later, including the number of times she claimed Glissendorf
touched her. The recordings thus had the potential to assist Glissendorf in
impeaching E.G. Without this tool for impeaching the State’s only witness
to the incident, Glissendorf was prejudiced.         The prejudice was
compounded by E.G.’s suggestion on cross-examination that the written
police report was both inaccurate and incomplete. As the court of appeals
observed, “The loss of the [recordings] thus created a two-fold harm,
depriving Glissendorf of objective impeachment evidence and

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                          STATE V. GLISSENDORF
                            Opinion of the Court

undermining the exculpatory impact of the evidence of the 2001 interview
that survived.” Glissendorf, 233 Ariz. at 230–31 ¶ 23, 311 P.3d at 252–53.

¶20           Although the court of appeals correctly held that the trial
court should have given a Willits instruction, the court erred in reversing
only the conviction on Count 1. Because the alleged acts were similar, the
State chose to try in one case the counts involving separate victims, see Ariz.
R. Crim. P. 13.3(a), and thereby to prove each act based in part on the
evidence of the other acts. Although character evidence is generally not
admissible to prove action in conformity therewith, Ariz. R. Evid. 404(a),
our rules make a narrow exception for sexual misconduct cases in which
the state can show that the defendant had an “aberrant sexual propensity
to commit the offense,” Ariz. R. Evid. 404(c). Thus, in 404(c) cases, separate
acts may be used to corroborate each other.

¶21            Throughout the trial, the State repeatedly encouraged the jury
to infer that the similarity of the acts supported convictions on all counts.
For example, during closing arguments, the prosecutor stated that the
“evidence as a whole shows . . . a pattern over and over again of the same
man, the same targets, the same acts again and again.” Repeating this
theme, the prosecutor said “[t]he common thread is the defendant doing
the same thing, picking out the same little girls over and over again,” and
“those facts are the same every single time. The same man, the same age
they were at, the same acts over and over again.”

¶22            The court of appeals, however, held that the denial of a Willits
instruction was harmless as to Count 2 because Glissendorf did not argue
that the error had affected that count. Glissendorf, 233 Ariz. at 233–34 ¶ 32,
311 P.3d at 255–56. This reasoning is flawed in both its characterization of
Glissendorf’s arguments and its application of the harmless error standard.
Although Glissendorf did not make separate arguments as to each count,
he did not limit his argument to Count 1. Instead, he argued generally that
the trial court’s error in failing to give a Willits instruction should result in
the reversal of both convictions.

¶23           Once Glissendorf had shown error, the burden shifted to the
State to prove that the error was harmless beyond a reasonable doubt. State
v. Henderson, 210 Ariz. 561, 567 ¶ 18, 115 P.3d 601, 607 (2005). The State did
not meet this burden. In its answering brief before the court of appeals, the
State did not even mention harmlessness. In opposing the petition for

                                       8
                         STATE V. GLISSENDORF
                           Opinion of the Court

review in this Court, the State merely observed that the two victims were
“unrelated.” And the State’s argument on the issue in its supplemental
brief focused on Glissendorf’s alleged failure to show error rather than
explaining how the error was harmless.

¶24          The State’s reticence perhaps reflects that there is no
convincing argument that the error did not affect both counts. See id.
(“Harmless error review places the burden on the state to prove beyond a
reasonable doubt that the error did not contribute to or affect the verdict or
sentence.”). The State’s case rested entirely on testimony, and Rule 404(c)
allowed the State to urge the jury to consider the evidence for one count as
supporting the other counts. Denying a Willits instruction thus affected
both Counts 1 and 2, because uncertainty about Count 1 might have
undermined the State’s arguments that it proved Count 2 beyond a
reasonable doubt. Because Glissendorf showed error with regard to both
counts and the State failed to show harmlessness, we must reverse the
convictions and sentences for both counts.

¶25            Although we also granted review to consider whether the
court of appeals erred by remanding for clarification of the trial court’s Rule
404(c) analysis, this issue is now moot, and we decline to address it. On
remand, the trial court shall reconsider the admission of the Rule 404(c)
evidence, if it is again offered.

                                     III.

¶26           We reverse the convictions and sentences, vacate the opinion
of the court of appeals, and remand this case to the trial court for a new
trial.




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