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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  JEFFREY LANDON MEYER, Appellant.

                             No. 1 CA-CR 14-0837
                               FILED 12-17-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR 2014-102892-001
                  The Honorable David B. Gass, Judge

                                  AFFIRMED


                                   COUNSEL

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

The Law Office of Kyle T. Green, PLLC, Mesa
By Kyle T. Green
Counsel for Appellant
                            STATE v. MEYER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.


T H U M M A, Judge:

¶1           Jeffrey Landon Meyer appeals from his conviction for
endangerment. Meyer argues the evidence was insufficient to support the
conviction and that the superior court erred by denying his motion to
preclude two witnesses and his motion to dismiss. Because Meyer has
shown no error, his conviction is affirmed.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2             Meyer was indicted on one count of endangerment with a
substantial risk of imminent death, a Class 6 dangerous felony. The charge
arose from a “road rage” incident in which Meyer was alleged to have
rammed his vehicle into the rear of the victim’s vehicle several times while
stopped at a red light. After a five day trial, the jury found Meyer guilty of
the lesser included offense of endangerment with a substantial risk of
imminent physical injury, a Class 1 misdemeanor. The superior court
placed Meyer on unsupervised probation for six months. This court has
jurisdiction over Meyer’s timely appeal pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(1), 13-4031 and -4033(A) (2015).2




1On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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                              STATE v. MEYER
                             Decision of the Court

                                DISCUSSION

I.     Sufficient Evidence Supports Meyer’s Conviction.

¶3            Meyer argues there was no physical evidence that the victim
was facing imminent death as a result of his actions. Insufficient evidence
claims are reviewed de novo, viewing the evidence in the light most
favorable to sustaining the verdict. State v. Bible, 175 Ariz. 549, 595 (1993).
In considering such a claim, this court’s review is limited to whether
substantial evidence supports the verdict. 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).

¶4             Endangerment requires proof of “recklessly endangering
another person with a substantial risk of imminent death or physical
injury.” A.R.S. § 13-1201(A). Endangerment is a Class 6 felony when it
“involv[es] a substantial risk of imminent death . . . . In all other cases, it is
a class 1 misdemeanor.” A.R.S. § 13–1201(B). As applied, the jury did not
find Meyer guilty of felony endangerment, instead finding him guilty of the
lesser offense of endangering the victim with a substantial risk of imminent
physical injury. Thus, any error in submitting the greater offense to the jury
would be harmless beyond a reasonable doubt. See State v. Van Winkle, 149
Ariz. 469, 471 (App. 1986).

¶5             As for the lesser offense on which Meyer was convicted, the
victim testified Meyer rammed his vehicle repeatedly into the rear of the
victim’s vehicle, causing injury to the victim’s neck. Much of this testimony
was corroborated by two other witnesses who observed the incident. Based
on this evidence, the jury could reasonably find that Meyer’s actions
recklessly placed the victim in substantial risk of imminent physical injury.
See State v. Williams, 111 Ariz. 175, 177–78 (1974) (holding uncorroborated
testimony by victim is sufficient to establish proof beyond a reasonable
doubt unless the account is physically impossible or so incredible that no
reasonable person would believe it). Thus, there was substantial evidence
presented at trial to support the conviction for misdemeanor
endangerment.

II.    Meyer Has Not Shown The Superior Court Erred In Denying His
       Motion To Preclude Witnesses.

¶6           The State presented testimony at trial from two occupants of
another vehicle who saw the incident. Meyer’s counsel worked with the
State to schedule pre-trial interviews of these witnesses, but on multiple


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                            STATE v. MEYER
                           Decision of the Court

occasions the witnesses failed to appear for the interviews. The day before
trial, Meyer moved to preclude the witnesses from testifying as a sanction.
See Ariz. R. Crim. P. 15.7(a)(1). The superior court denied the motion and
instead arranged to have the witnesses interviewed by defense counsel
before they testified and also precluded the State from using a photograph
taken by one of the witnesses in its case-in-chief. Meyer argues the court
erred in denying his motion, an issue this court reviews for an abuse of
discretion. State v. Connor, 215 Ariz. 553, 557 ¶ 6 (App. 2007).

¶7            Because the Arizona Rules of Criminal Procedure are
designed to implement, not impede, the fair and speedy determination of
cases, preclusion is rarely an appropriate sanction. State v. Smith, 140 Ariz.
355, 359 (1984). Given that Meyer never sought an order requiring the
witnesses to appear for an interview as provided by Arizona Rule of
Criminal Procedure 15.3(a)(2), and because Meyer’s inability to interview
the witnesses was through no fault of the State, there was no abuse of
discretion in denying the motion to preclude. See State v. Paxton, 186 Ariz.
580, 588 (App. 1996).

III.   Meyer Has Not Shown The Superior Court Erred By Denying His
       Motion To Dismiss.

¶8             Meyer argues the superior court erred by denying his motion
to dismiss the charge based on destruction of photographic evidence by a
police officer, resulting in a denial of his due process rights. In deciding
against dismissal, the court determined that a Willits instruction was
sufficient under the circumstances. See State v. Willits, 96 Ariz. 184, 191
(1964). This court reviews claims of denial of due process de novo. State v.
McGill, 213 Ariz. 147, 159 ¶ 53 (2006).

¶9            At issue are photographs emailed to a patrol officer by a
witness who took pictures of the vehicles with his cell phone during and
immediately after the incident. The patrol officer forwarded the email with
the photographs to the violent crimes bureau and printed hard copies for
use by neighborhood enforcement team officers tasked with the follow-up
investigation. The patrol officer did not keep copies of the photographs and
deleted the email he received from his computer. The patrol officer does not
know what the other officers to whom he forwarded the email and the
printed copies of the photographs did with them, but it is undisputed that
they were not preserved by the police.




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                             STATE v. MEYER
                            Decision of the Court

¶10            The witness who emailed the photographs to the patrol
officer later located one of the photographs in an online account before
testifying at trial and a printout of that photograph was admitted at trial.
The witness testified that the three missing photographs were all similar in
character to the one admitted and described what each photograph
depicted.

¶11             Due process requires the State to preserve evidence of
“constitutional materiality.” State v. Dunlap, 187 Ariz. 441, 452 (App. 1996);
see also State v. Walters, 155 Ariz. 548, 551 (App. 1987) (noting State has duty
to preserve potentially exculpatory evidence “that is obvious, material and
reasonably within its grasp”). Where the State fails to preserve such
evidence, due process may require dismissal of the case if the defendant can
show either that the State acted in bad faith in destroying or losing the
evidence, or that the defendant suffered prejudice-in-fact because the lost
evidence was exculpatory. Arizona v. Youngblood, 488 U.S. 51, 58 (1988)
(Youngblood I); State v. Youngblood, 173 Ariz. 502, 507 (1993) (Youngblood II).

¶12           Here, there was no showing that the State acted in bad faith
in destroying or losing the photographs. Meyer points to the fact that the
officer deleted the email with the photographs in arguing there was
deliberate destruction of evidence. Before deleting the email from his
computer, however, the officer forwarded both digital and printed copies
of the photographs to other officers responsible for the follow-up
investigation. Thus, there was no destruction of evidence by the officer,
merely deletion of one copy of the photographs after forwarding them to
other officers. Although the record does not show what happened to the
copies of the photographs forwarded to the other officers, there is no
evidence that they were deliberately destroyed to gain some tactical
advantage against Meyer as opposed to being lost or otherwise discarded
negligently. Moreover, there is nothing indicating that the missing
photographs had any exculpatory value. See Dunlap, 187 Ariz. at 452
(presence of bad faith turns on “the police’s knowledge of the exculpatory
value of the evidence”). Indeed, testimony by the witness who took the
photographs regarding what he observed while taking them served only to
support the charge against Meyer.

¶13            Even giving Meyer the benefit of the doubt that the missing
photographs might have been exculpatory, because the record does not
establish that the State acted in bad faith in failing to preserve the missing
photographs, due process does not require dismissal of the prosecution on
this basis. See Youngblood I, 488 U.S. at 58 (“[U]nless a criminal defendant
can show bad faith on the part of the police, failure to preserve potentially


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                            STATE v. MEYER
                           Decision of the Court

useful evidence does not constitute a denial of due process of law.”).
Instead, giving a Willits instruction, which permits the jury to draw an
adverse inference from lost or missing evidence, is sufficient to preclude the
State from taking advantage of its conduct in destroying or losing evidence
that might have had some possible tendency to exonerate Meyer. See
Youngblood II, 173 Ariz. at 507 (“[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 dismiss the case. It is
enough to let the jury decide whether to draw such an inference.”). Because
the superior court gave the jury a Willits instruction, Meyer’s right to due
process was adequately protected. Accordingly, Meyer has shown no error
by the superior court in denying the motion to dismiss.

                              CONCLUSION

¶14           Because he has shown no error, Meyer’s conviction is
affirmed.




                                  :ama




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