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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       ROBERT JEFFREY MORRISON,
                                Appellant.

                             No. 1 CA-CR 14-0674
                               FILED 10-6-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-002141-001
            The Honorable William L. Brotherton, Jr., Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By David A. Simpson
Counsel for Appellee

The Law Office of Stephen L. Crawford, Phoenix
By Stephen L. Crawford
Counsel for Appellant
                          STATE V. MORRISON
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Maurice Portley joined.


O R O Z C O, Judge:

¶1             Robert Jeffrey Morrison appeals from his convictions and
resulting sentences for two counts of shoplifting with an artifice or device,
both class 4 felonies. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            On November 25, 2012, Morrison entered a cosmetics and
fragrance store (Ulta) in Paradise Valley. The store manager, J.F., became
suspicious that Morrison might try to shoplift, so she asked an employee to
speak to Morrison in the fragrance department and another employee to
watch the store’s live security footage. J.F. was then informed that Morrison
had placed two bottles of fragrances in his bag.

¶3           J.F. waited at the store’s exit and asked Morrison to return the
fragrances as he approached her. Morrison returned the fragrances and
pushed his way past J.F. to exit the store.

¶4           Officer Montoya was called to the store and detained
Morrison as he walked out of the store. After speaking with J.F. and
conducting a further investigation, Officer Montoya arrested Morrison.

¶5            Morrison called his brother, Rick, from jail. At the beginning
of the call, Morrison was informed that the call would be recorded and
monitored, and if “the call is in place to legal counsel,” to hang up and
notify the sheriff’s office. While relaying incriminating information,
Morrison asked Rick to contact an attorney on his behalf.

¶6           At trial, Morrison moved to exclude the entire recording of
the conversation from evidence because he disclosed information while
attempting to persuade Rick to call an attorney. He further argued that the
recording should be excluded pursuant to Arizona Rules of Evidence 401,

1      We view the facts in the light most favorable to sustaining the jury’s
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                            STATE V. MORRISON
                             Decision of the Court

402, 403, and 404(b). The following redacted recording was played before
the jury:

       Rick: The problem is that you went and shoplifted.

       Morrison: That’s true. I know.

       Rick: What is your problem? What is the deal with you?

       Morrison: I didn’t have any money, Ricky. I didn’t have any
       money.
                                    * * *

       Morrison: I know. I shoplifted.

       Rick: Where did you commit it?

       Morrison: Where?

       Rick: Yeah.

       Morrison: At the Ulta store across from Paradise Valley Mall
       next to Sports Authority.

¶7            The State initially declined prosecution of the case and the
video surveillance recording was destroyed. When charges were later filed,
the recording was no longer available and Ulta did not retain a copy of the
recording. Because the State destroyed the surveillance recording, the trial
court provided a Willits2 instruction to the jury.

¶8             Morrison was convicted of two counts of felony shoplifting
with artifice and was sentenced to ten years’ imprisonment for each count,
to run concurrently. The trial court further sentenced Morrison to .33 years’
imprisonment for a probation violation. Morrison appealed, and we have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 and 13-4031
and -4033.A.1 (West 2015).3




2      See State v. Willits, 96 Ariz. 184 (1964).

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


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                           STATE V. MORRISON
                            Decision of the Court

                               DISCUSSION

I.     Admission of Jail Call Recording was Proper

¶9            Morrison argues that the jail phone call recording should
have been excluded from evidence because “it was privileged and highly
prejudicial.” Whether an evidentiary privilege exists is an issue of law we
review de novo. State v. Sucharew, 205 Ariz. 16, 21, ¶ 9 (App. 2003).
However, we review the trial court’s rulings on the admissibility of
evidence for an abuse of discretion. State v. Daniel, 169 Ariz. 73, 74 (App.
1991).

¶10             Morrison attempts to assert attorney-client privilege because
“it is not clear in this case that [he] could have reached his attorney and his
brother was therefore a necessary agent to make the phone call.” A
defendant may assert the attorney-client privilege over communications
between himself and his attorney in the course of the attorney’s
professional employment. Sucharew, 205 Ariz. at 21, ¶ 10. The purpose of
the privilege is to promote full and frank communication between attorneys
and their clients. Id. It only applies to “confidential communications made
for the purpose of obtaining or providing legal assistance for the client.”
Ariz. Indep. Redistricting Comm’n v. Fields, 206 Ariz. 130, 142, ¶ 39 (App.
2003).

¶11           Although Morrison purportedly called Rick to persuade him
to contact an attorney on his behalf, it is undisputed that Rick is not an
attorney. Thus, any communications between Morrison and Rick cannot be
privileged under the attorney-client privilege. Moreover, Morrison could
not have reasonably expected his communications with Rick to be
confidential. When Morrison was booked into jail, he was told his phone
calls would be recorded. Also, there is a recording at the beginning of all
outgoing calls reminding inmates that all calls are being recorded and
monitored and that they should notify the sheriff if they are attempting to
speak with an attorney.

¶12           Morrison next contends:

       [T]he statements made by [Morrison], while capable of being
       interpreted as merely a request to speak to an attorney
       because of the existence of a charge, are much more likely to
       be interpreted as an admission of guilt and should have only
       been admitted into evidence [if] the admission was made
       knowingly and voluntarily.



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                            STATE V. MORRISON
                             Decision of the Court

¶13           The trial court may exclude relevant evidence if its probative
value is outweighed by the danger of unfair prejudice. Ariz. R. Evid. 403.
“Unfair prejudice may exist if the evidence has an undue tendency to
suggest decision on an improper basis, such as emotion, sympathy or
horror.” State v. Salamanca, 233 Ariz. 292, 296, ¶ 17 (App. 2013) (punctuation
omitted). Because the trial court is in the best position to make this
determination, it has broad discretion to do so. Id.

¶14            Although we agree that the phone call recording was
“prejudicial” insofar as it was incriminating, Morrison has not shown that
the trial court abused its discretion by admitting it. See State v. Wooten, 193
Ariz. 357, 366, ¶ 45 (App. 1998). There is no evidence in the record
suggesting Morrison’s statements to his brother were made involuntarily.
Moreover, the jury was properly instructed on the issue of involuntary
statements. Finding no abuse of discretion, we affirm the trial court’s
ruling.

II.    Willits Instruction was Sufficient

¶15             Morrison next argues that his right to a fair trial was violated
because the State destroyed Ulta’s surveillance recording. He contends,
“[w]hile the Willits instruction is normally sufficient unless the state has
acted in bad faith, when a piece of evidence is fundamental to a defendant’s
case, it is not clear that the Willits instruction is enough.”

¶16            “[W]here evidence which might have tended to exonerate the
defendant is destroyed while in the state’s possession, a defendant is
entitled to a Willits instruction.” State v. Perez, 141 Ariz. 459, 464 (1984). The
trial court provided the following instruction:

       If you find 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 defendant’s guilt.

¶17            Quoting Chief Justice Feldman’s opinion in State v.
Youngblood, 173 Ariz. 502, 511 (1993), concurring and dissenting in part,
Morrison contends that a Willits instruction was insufficient if the
defendant did not receive “what the due process clause of the constitution
requires: a fair trial under fundamentally fair procedures.” In Youngblood,
the Arizona Supreme Court held: “With respect to evidence which might be


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                          STATE V. MORRISON
                           Decision of the Court

exculpatory, and where there is no bad faith conduct, the Willits rule more
than adequately complies with the fundamental fairness component of
Arizona due process.” 173 Ariz. at 506-07.

¶18            Morrison contends that the recording is “critically important
to the defense” without further explaining its significance nor claiming that
it is exculpatory evidence. Moreover, Morrison does not argue, and we find
no evidence in the record suggesting, that the State destroyed the video in
bad faith. Thus, we find the trial court’s Willits instruction comported with
the requirements of due process.

                              CONCLUSION

¶19           For the foregoing reasons, Morrison’s convictions and
sentences are affirmed.




                                  :ama




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