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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JOSHUA CHARLES HAFEN, Appellant.

                             No. 1 CA-CR 14-0600
                               FILED 8-11-2015


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201300077
               The Honorable Rick A. Williams, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Alice Jones
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. HAFEN
                           Decision of the Court


                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Lawrence F. Winthrop joined.


J O H N S E N, Judge:

¶1            Joshua Charles Hafen appeals his convictions of burglary in
the third degree and theft. Hafen argues there is insufficient evidence to
support the convictions and that the superior court erred in instructing the
jury. For reasons that follow, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Early one morning, a white pickup truck with a small trailer
entered a self-storage facility. A man and a woman exited the truck and
forced open one of the storage units. After loading items from the storage
unit into the truck and trailer, they drove away. Later that morning, the
victim discovered her storage unit had been broken into and items were
missing. When shown video from a security system at the storage facility,
the victim recognized the two people in the truck as former friends, one of
whom she identified as Hafen. Following up on that information, Mohave
County Sheriff's deputies went to Hafen's residence, where they found a
white pickup truck of the same make and items taken from the victim's
storage unit.

¶3            Hafen was indicted on charges of burglary in the third degree,
a Class 4 felony, and theft, a Class 1 misdemeanor. The jury found Hafen
guilty as charged. The superior court suspended sentencing and placed
Hafen on probation for two years. Hafen timely appealed. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes sections 12-120.21(A)(1), 13-4031, -4033(A)(1)
(2015).1




1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


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                             STATE v. HAFEN
                            Decision of the Court

                                DISCUSSION

A.     Sufficiency of Evidence.

¶4             Hafen argues the evidence was insufficient to prove he was
one of the persons who broke into and stole items from the victim's storage
unit. We review claims of insufficient evidence de novo, viewing the
evidence in the light most favorable to upholding the verdict. See State v.
Bible, 175 Ariz. 549, 595 (1993).

¶5              In considering a claim of insufficient evidence, this court
looks only to see whether substantial evidence supports the verdict. See
State v. Scott, 177 Ariz. 131, 138 (1993). "Substantial evidence is proof that
reasonable persons could accept as sufficient to support a conclusion of a
defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277,
290 (1996). This court will reverse a conviction for insufficient evidence
only if "there is a complete absence of probative facts to support [the jury's]
conclusion." State v. Mauro, 159 Ariz. 186, 206 (1988).

¶6             There was substantial evidence from which the jury could
conclude beyond a reasonable doubt that Hafen was guilty of the crimes
charged. The victim recognized Hafen as one of the two people on the
security video who broke into her storage unit. While the video was not
clear enough to make out faces, the victim testified that she recognized the
two people based on their "body structure." On cross-examination, the
victim stated her identification was "not for sure." Even though the victim's
identification was not absolutely positive, our supreme court has stated:
"On questions of identity, it is not necessary that a witness should swear
positively and pointedly; it is only necessary and is of common occurrence,
for them to swear that they believe the person to be the same, and the degree
of credit to be attached to their evidence, is a question for the jury." State v.
Dutton, 83 Ariz. 193, 198 (1957) (quotation omitted).

¶7            Circumstantial evidence supported the victim's identification.
Substantial evidence required for conviction can be either direct or
circumstantial and "the probative value of the evidence is not reduced
simply because it is circumstantial." State v. Anaya, 165 Ariz. 535, 543 (App.
1990). The additional evidence included a witness at the storage facility
who saw the people in the truck and testified that while he did not get a
good look at their faces, the male had "scruff on his face." When the sheriff's
deputies contacted Hafen later that day, they saw he had a beard and
sideburns. There also was evidence that although the quality of the video
was too poor to make out the license plate on the truck, the truck found



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                             STATE v. HAFEN
                            Decision of the Court

parked at Hafen's residence had stickers in similar locations as the truck in
the security video. Finally, items stolen from the victim's storage unit were
found at Hafen's residence. Considered together, the evidence was more
than sufficient to support the jury's verdicts. See State v. Fulminante, 193
Ariz. 485, 494, ¶¶ 26-28 (1999) (applying totality of circumstances test for
sufficiency of evidence).

B.     Jury Instructions.

       1.     Willits instruction.

¶8             Hafen argues the superior court erred by denying his request
for a Willits instruction. See State v. Willits, 96 Ariz. 184 (1964). A Willits
instruction informs the jurors that they may infer that missing evidence
would have been exculpatory "[w]hen police negligently fail to preserve
potentially exculpatory evidence." Fulminante, 193 Ariz. at 503, ¶ 62. We
review a superior court's denial of a request for a Willits instruction for
abuse of discretion. Id.

¶9             Hafen contends a Willits instruction should have been given
based on the State's failure to preserve a pink afghan blanket identified by
the victim as having been taken from her storage unit and the security video
of the burglary. Hafen argues that if the afghan, which was found on his
porch, had been preserved, it could have been tested to support his
contention that it had been at the residence for weeks and just placed on the
porch to air out because his cats had urinated on it. According to Hafen, an
examination would have shown cat hair or urine on the afghan, thereby
proving it had not been taken that day from the victim's storage unit. Hafen
further argues that the failure to preserve the video from the storage facility
security camera deprived him of the opportunity to try to enhance it to
better see the truck, the individuals in the truck, and the stolen items.

¶10           The destruction or failure to preserve evidence "does not
automatically entitle a defendant to a Willits instruction." State v. Murray,
184 Ariz. 9, 33 (1995). To receive a Willits instruction, the defendant must
show 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
(2014) (quotation omitted).

¶11          A sheriff's deputy testified that, rather than retain the afghan
as evidence, authorities photographed and returned it to the victim. The
victim, however, testified the afghan was never returned to her. Regardless



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                             STATE v. HAFEN
                            Decision of the Court

of what happened to the afghan, the superior court did not abuse its
discretion in refusing a Willits instruction based on the afghan's
unavailability. As the court noted in denying the instruction, a significant
number of hours had passed between the burglary and the recovery of the
afghan at Hafen's residence and therefore testing would not necessarily
provide exonerating evidence as there could have been cat hair or urine on
the afghan within minutes of its arrival at the residence. Because the
superior court could reasonably conclude that the presence of cat hair and
urine on the afghan would not have any tendency to exonerate Hafen, there
was no error in refusing the instruction with respect to the afghan. See State
v. Watkins, 126 Ariz. 293, 302 (1980) (Willits instruction properly refused
when evidence had "no evidentiary value"); State v. Garrison, 120 Ariz. 255,
259 (1978) (same).

¶12            There likewise was no error by the superior court in refusing
to give a Willits instruction in regards to the State's failure to preserve the
storage facility security video. The video was not lost or destroyed by the
State; the video simply was not collected because the sheriff's deputies
lacked the equipment to do so. The storage facility had no way to transfer
the video to the deputies and the deputies lacked the equipment to make a
copy. In order to preserve the evidence in the best form available, a deputy
took a photograph of the monitor displaying what the deputy considered
the clearest frame of the video depicting the truck at the storage facility.
Given the limited resources of the sheriff's department, the superior court
could reasonably find that a copy of the full video was not "reasonably
accessible evidence" and therefore a Willits instruction was not appropriate
under the circumstances. See Glissendorf, 235 Ariz. at 150, ¶ 8.

¶13            Moreover, Hafen has not shown that the video would have
had a tendency to exonerate him. There was testimony that the quality of
video was quite poor, and this testimony is supported by the photograph
taken of the video. Although Hafen argues on appeal that if the video was
available it could have been analyzed and possibly enhanced, he has not
shown that the video could be enhanced to show any more detail than what
was available in the photograph. "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. . . . [T]here must be a real likelihood
that the evidence would have had evidentiary value." Glissendorf, 235 Ariz.
at 150, ¶ 9 (citations omitted). "The defendant must demonstrate that the
lost evidence would have been material and potentially useful to a defense
theory supported by the evidence." State v. Williamson, 236 Ariz. 550, 561,
¶ 36 (App. 2015) (quotation omitted). On this record, Hafen has failed to
show the superior court abused its discretion in finding that he was not


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                             STATE v. HAFEN
                            Decision of the Court

prejudiced by the unavailability of the video. Accordingly, the court did
not err in refusing the request for a Willits instruction.

       2.     Mere presence instruction.

¶14         Hafen also argues the superior court erred by failing to give a
mere presence instruction. A mere presence instruction typically states:

       Guilt cannot be established by the defendant's mere presence
       at a crime scene, mere association with another person at a
       crime scene or mere knowledge that a crime is being
       committed. The fact that the defendant may have been
       present, or knew that a crime was being committed, does not
       in and of itself make the defendant guilty of the crime
       charged. One who is merely present is a passive observer
       who lacked criminal intent and did not participate in the
       crime.

See Rev. Ariz. Jury Instr. Stand. Crim. 31.

¶15            As Hafen acknowledges, he did not ask the superior court to
give a mere presence instruction. Thus, this issue has been waived, except
for fundamental error. See Ariz. R. Crim. P. 21.3(c); State v. Gallegos, 178
Ariz. 1, 12 (1994) ("[A] trial judge's failure to give an instruction sua sponte
provides grounds for reversal only if such failure is fundamental error.").
Fundamental error is error that "go[es] to the foundation of the case, . . .
takes from the defendant a right essential to his defense, [and is] of such
magnitude that the defendant could not possibly have received a fair trial."
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (quotation omitted).

¶16            This court has held that in a prosecution for accomplice
liability based on actual presence, a court must give a mere presence
instruction when requested if the evidence supports it. See State v. Noriega,
187 Ariz. 282, 286 (App. 1996). This directive, however, does not apply here
for two reasons. First, as previously mentioned, Hafen did not request a
mere presence instruction. Second, Hafen was not charged as an
accomplice; rather, the State argued that Hafen was guilty based on his own
actions in breaking into the storage unit and taking the victim's property.
Consequently, even if Hafen had requested such an instruction, the
superior court would not have abused its discretion by denying the request.
See State v. Doerr, 193 Ariz. 56, 65, ¶ 37 (1998) (noting that in Noriega, this
court "expressly limited" the requirement of a mere presence instruction to
a prosecution based on accomplice liability). There was no error, much less



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                           STATE v. HAFEN
                          Decision of the Court

fundamental error, in failing to give a mere presence instruction here. See
State v. Dominguez, 192 Ariz. 461, 464, ¶ 12 (App. 1998).

                             CONCLUSION

¶17           For the foregoing reasons, we affirm Hafen's convictions and
the resulting disposition.




                                   :RT




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