                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

            BRANDON MICHAEL FEATHERSTON, Appellant.

                             No. 1 CA-CR 13-0879
                              FILED 10-16-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-159493-001
                 The Honorable Jo Lynn Gentry, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
                            STATE v. FEATHERSTON
                              Decision of the Court



                          MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Presiding Judge Randall M. Howe and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1            Brandon Featherston appeals from his conviction and
sentence for aggravated assault, a class three felony. Specifically,
Featherston challenges the trial court’s denial of his request for a Willits1
jury instruction. For the following reasons, we affirm the conviction and
sentence.

                FACTS AND PROCEDURAL BACKGROUND

¶2              On the evening of November 20, 2012, I.S. and his wife in their
backyard. At approximately 11:30 p.m., they heard squealing tires followed
by a thud. Suspecting a car accident had occurred, I.S. went to investigate
and proceeded around the corner, where he was met by an unidentified
man whom he assumed was a neighbor. As he went around the corner, he
observed a white Ford Mustang sitting on the curb and skid marks that
began over the curb and went across his neighbors’ yards. The tires on the
car’s left side were blown out from going over the curb and the rims were
damaged.

¶3             The unidentified man remained behind I.S. as he approached
the vehicle, where he saw two men standing on opposite sides of the car
and passing an alcoholic beverage back and forth over the top of the car.
Moreover, he observed that Featherston, the driver, had a pocket knife in
his hand. I.S. saw Featherston “fondl[e] the knife in his hand” and “twist[]
it open and shut a little bit.” I.S. told Featherston there was no need for the
knife and he should put it away. Featherston then approached I.S. with the
knife as if he was “going to essentially try to attack” I.S. with the knife. I.S.
recalled the second man by the vehicle also told Featherston to put the knife
away. Feeling threatened, I.S. placed his hand behind his back as if to grab
a hidden weapon, which caused Featherston to put the knife away and
retreat. I.S. told the two men that they should not return to the car that
night and watched them walk away from the vehicle. I.S. did not discuss


1   See State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).


                                          2
                         STATE v. FEATHERSTON
                           Decision of the Court

the incident with the unidentified witness because he “felt like the incident
had been defused,” and I.S. has not seen or spoken to him since that night.

¶4             When he returned home, I.S. told his wife what occurred. He
subsequently returned to the accident scene approximately five to ten
minutes later and found the two men had also returned to the car.
Concerned about a potential threat, I.S. called 911. Featherston fled when
the police arrived, and a search began. Police asked I.S. to provide a written
statement recounting the night’s events. I.S. also verbally answered the
questions of police officer Robert Sheehan, who documented I.S.’s
responses in his report. I.S. “got maybe a sentence into [his written]
statement,” when he was asked to accompany officers to identify an
apprehended suspect. I.S. identified the suspect as the person who pointed
the knife at him and the suspect was subsequently identified as Featherston.
I.S. then completed his written statement.

¶5             Featherston was charged with aggravated assault and the
case proceeded to trial. At trial, an officer testified that I.S’s written
statement was lost and could not be located. Featherston asked for a Willits
instruction arguing “[t]he lack of this evidence deprives Mr. Featherston of
the ability to affirmatively prove that the victim in this case is not being
truthful.” Featherston argued there was an inconsistency in I.S.’s
statements because he testified about the unidentified witness at a prior
hearing despite this witness not being mentioned in the police report.
Moreover, Featherston argued that the missing police report rendered him
unable to cross-examine I.S. about the statement and unable to impeach I.S.
on inconsistencies with the statement and I.S.’s recollection of the events
that occurred.

¶6            Featherston’s proposed Willits instruction read:

       In this case, a witness statement existed of [I.S.]. If you find
       that the plaintiff, the state of Arizona, 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 infer that the evidence is against the State’s
       interest, which may create a reasonable doubt about the
       defendant’s guilt.




                                      3
                         STATE v. FEATHERSTON
                           Decision of the Court

The State argued that the instruction was unwarranted because “the
defense has failed to present evidence explaining why the missing victim
statement would contain evidence of any exculpatory value.”

¶7            The trial court denied Featherston’s requested instruction and
the jury found him guilty of aggravated assault. Featherston timely
appealed and we have jurisdiction under Arizona Revised Statutes (A.R.S.)
§§ 13-4031, 13-4033, and 12-120.21 (West 2014)2.

                               DISCUSSION

¶8            We review the denial of a Willits instruction for an abuse of
discretion. State v. Speer, 221 Ariz. 449, 457, ¶ 39, 212 P.3d 787, 795 (2009).
A trial court does not abuse its discretion by refusing to give a Willits
instruction when the defendant fails to establish that the lost evidence
would have the tendency to exonerate him. Id. at ¶ 40.

¶9              The Arizona Supreme Court has established that “if the state
fails to preserve evidence that is potentially exonerating, the accused might
be entitled to an instruction informing the jury that it might draw an
adverse inference from the state’s action.” State v. Glissendorf, 235 Ariz. 147,
149, ¶ 1, 329 P.3d 1049, 1051 (2014) (citing Willits, 96 Ariz. at 191, 393 P.2d
at 279). To be entitled to a Willits instruction, Featherston “must prove that
(1) the state failed to preserve material and reasonably accessible evidence
that could have had a tendency to exonerate [him] and (2) there was
resulting prejudice.” See State v. Smith, 158 Ariz. 222, 227, 762 P.2d 509, 514
(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.” Glissendorf, 235 Ariz. at 150, ¶ 9, 329 P.3d at 1052. Instead,
a defendant must demonstrate that the missing evidence would have had
evidentiary value. Id. Whether such an instruction is necessary depends
on the issue’s centrality to the case and whether the court can determine
that the “missing” evidence might have been much better or more
important than the evidence that was introduced. State v. Willcoxson, 156
Ariz. 343, 346-47, 751 P.2d 1385, 1388-89 (App. 1987).

¶10          At trial, Featherston argued he was entitled to a Willits
instruction because I.S.’s written statement could have “some sort of
exculpatory information in there, because [I.S.] could have wr[itten] in his


2      We cite to the current version of applicable statutes when no
revisions material to this decision have since occurred.



                                       4
                         STATE v. FEATHERSTON
                           Decision of the Court

witness statement what the [unidentified witness] was doing.” The trial
court refused the proposed Willits instruction, finding that the defendant
was asking the court to speculate that there was potentially something
exculpatory in the statement and that Featherston’s argument that the
victim’s statement could be “a hundred percent different” from his
testimony was “a stretch.”

¶11             On appeal, Featherston contends he “did more than
speculate” because he showed that the police failed to reveal “what [I.S.]
may have told them” about the unidentified witness. Featherston argues
that a Willits instruction was warranted because the statement “might have
contained exculpatory information, such as what the [unidentified witness]
did or said, things [I.S.] forgot or omitted at trial, or impeachment.”

¶12          Although Featherston can prove that the state failed to
preserve the written statement, he cannot show that the report would have
exonerated him or that he suffered prejudice. Featherston’s argument
appears to rest on the possibility that I.S., in his written statement,
mentioned the unidentified witness who was not mentioned in the police
report. However, it is unclear how such a statement would exonerate
Featherston. At best, Featherston’s argument is speculative.

¶13             We have previously held that a trial court does not abuse its
discretion by refusing to give a Willits instruction when a defendant merely
speculates that lost evidence would have supported his theory of the case.
See State v. Dunlap, 187 Ariz. 441, 464, 930 P.2d 518, 541 (App. 1996) (holding
that defendant was not entitled to an instruction when the specific contents
of the documents removed from a file were unknown and there was no
evidence they contained exculpatory information). Moreover, Featherston
cannot prove he was prejudiced. He was provided a recording of I.S.’s 911
call, a copy of the police report that contained statements I.S. made the same
evening he wrote the statement at issue, and he also cross examined I.S. at
trial. Featherston has not demonstrated that the written statement
contained exculpatory or impeachment evidence with respect to I.S.’s
recollection of the events that occurred. See Willcoxson, 156 Ariz. at 346-47,
751 P.2d at 1388-89. Thus, we find the trial court did not abuse its discretion
by refusing to give the jury a Willits instruction.




                                      5
                     STATE v. FEATHERSTON
                       Decision of the Court

                         CONCLUSION

¶14          For the above stated reasons, we affirm Featherston’s
conviction and sentence.




                              :gsh




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