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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              BENNY ANTONIO MARTINEZ, JR., Appellant.

                             No. 1 CA-CR 19-0009
                               FILED 1-14-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-136818-001
                  The Honorable Dewain D. Fox, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
                           STATE v. MARTINEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Chief Judge Peter B. Swann joined.


C R U Z, Judge:

¶1            This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Benny
Antonio Martinez, Jr., (“Martinez”) has advised this court that counsel
found no arguable questions of law and asks us to search the record for
fundamental error. Martinez was convicted of discharging a firearm at a
non-residential structure and discharging a firearm within a municipality.
Martinez pled guilty to possession of marijuana and paraphernalia.
Martinez has filed a supplemental brief in propria persona, which the court
has considered. After reviewing the record, we affirm Martinez’s
convictions and sentences, but vacate the portion of the sentencing order
requiring Martinez to pay for his DNA testing.

               FACTUAL AND PROCEDURAL HISTORY

¶2            We view the facts in the light most favorable to sustaining the
verdicts and resolve all reasonable inferences against Martinez. See State v.
Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).

¶3             Martinez and Gina Armstrong (“Armstrong”) were driving in
Glendale when they got into a car accident with another car driven by A.G.
While still in the car, Martinez grabbed his firearm and placed it in his
waistband so that it was visible. Martinez and Armstrong exited the car
and started yelling at A.G. Then, A.G. drove away, and Martinez pulled
out his firearm and shot toward her car three times; two bullets hit the rear
of A.G.’s car.

¶4            Martinez and Armstrong got back in the car and followed
A.G. into a cul-de-sac, purportedly to get her license plate number.
Martinez positioned the car at the entrance of the cul-de-sac to prevent A.G.
from leaving. A.G. then drove onto the sidewalk and left the cul-de-sac.
Martinez and Armstrong continued to follow A.G. when A.G. lost control
of her car and crashed into another car.




                                      2
                           STATE v. MARTINEZ
                           Decision of the Court

¶5            After receiving multiple calls of shots fired and a possible hit-
and-run accident, officers from Glendale Police Department arrived at the
scene of the second accident. Martinez told officers that he shot at A.G.
because she tried to run over him. Officers then handcuffed Martinez and
read him Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).
Martinez said he felt his life was in danger, but he also described how he
jumped out of the way as the car passed him, regained his balance, turned,
and shot the car as it drove away.

¶6           During the investigation, officers seized the firearm,
photographed the cars, and seized paraphernalia and marijuana in
Martinez’s car. Officers also located the scene of the first accident and
shooting. Officers recovered the three bullet casings and photographed the
scene. However, the photos of the initial scene were lost by the Glendale
Police Department during a change of their records management system.

¶7           The State charged Martinez with aggravated assault,
discharging a firearm at a non-residential structure, discharging a firearm
within a municipality, and possession of marijuana and paraphernalia.
Martinez plead guilty to possession of marijuana and paraphernalia. The
State proceeded to trial on the remaining charges.

¶8            At trial, A.G. testified that Martinez started shooting
immediately after the accident and then she drove off. However, Martinez
asserted that A.G. tried to run him over and that is why he then shot at her
in self-defense and to prevent her from leaving the scene. However,
Martinez also testified that:

       I just seen her put her car in drive, and she drove -- she tried
       to hit me with her car. I had to jump out of my way -- jump
       out of the way. After I gained my balance, that’s when I fired
       three shots at her -- the back of her vehicle.

¶9          Martinez further testified that at the time he fired his gun, he
did not think A.G.’s car could have hit him and that he was not in
immediate danger.

¶10            Defense counsel presented expert testimony on the police’s
failure to impound the car for further investigation and the failure to take
measurements at the initial accident, which—according to the defense—
may have produced evidence that could have corroborated Martinez’s
story. Defense counsel also moved for Arizona Rule of Criminal Procedure
20 judgment of acquittal. The court found that substantial evidence existed
as to all charges and denied the motion.


                                      3
                           STATE v. MARTINEZ
                           Decision of the Court

¶11            Before closing arguments, the parties agreed that a Willits
instruction was appropriate because the police lost the photos of the initial
scene. See State v. Willits, 96 Ariz. 184 (1964). The court gave the Willits
instruction without limiting it to the lost photos. The court also instructed
the jury as to self-defense, among other instructions.

¶12          The jury found Martinez guilty of discharging a firearm at a
non-residential structure and discharging a firearm within a municipality.
The court declared a mistrial as to the aggravated assault charge when the
jury was unable to reach a unanimous verdict. The court also found that
the firearm charges were dangerous offenses because the jury found that
Martinez discharged a firearm.

¶13            The court then conducted the sentencing hearing in
compliance with Martinez’s constitutional rights and Arizona Rule of
Criminal Procedure 26. The court found the following to be mitigating
factors: Martinez’s age and maturity level at the time of the offense; a lack
of positive parental figures, poverty, and emotional neglect during
Martinez’s childhood; and no criminal history. Martinez was sentenced to
a term of six and one-half years for discharging a firearm at a non-
residential structure, a term of two and one-quarter years for discharging a
firearm within a municipality, and two terms of one year for both drug
charges including fines. The court ordered that the sentences be served
concurrently, and presentence credit for thirty-nine days served. The court
also ordered Martinez to pay for his DNA testing.

                               DISCUSSION

¶14           We review the entire record for reversible error. State v.
Thompson, 229 Ariz. 43, 45, ¶ 3 (App. 2012). Counsel for Martinez has
advised this court that after a diligent search of the entire record, counsel
has found no arguable question of law. However, in his supplemental brief,
Martinez raises several issues, which we address in turn.

¶15           Martinez argues that A.G.’s prior inconsistent statement
regarding when Martinez started shooting at her car warrants relief from
his convictions. The “credibility of witnesses and the weight and value to
be given to their testimony are questions exclusively for the jury.” State v.
Clemons, 110 Ariz. 555, 556-57 (1974). Here, the jury was responsible for
assessing A.G.’s credibility and deciding what narrative to believe. In fact,
counsel for Martinez impeached A.G.’s credibility with the same statement,
which is the proper trial tactic to address a prior inconsistent statement. See
Ariz. R. Evid. 801(d)(1)(A). We find no error.



                                      4
                           STATE v. MARTINEZ
                           Decision of the Court

¶16           Martinez also asserts that had the police impounded the cars
for further testing, taken measurements at the scene of the first accident,
and properly retained the photos of the scene, the jury would have returned
not-guilty verdicts on all counts. “[A]bsent bad faith on the part of the state,
the failure to preserve evidentiary material which could have been
subjected to tests, the results of which might have exonerated the
defendant, does not constitute a denial of due process of law under the
Arizona Constitution.” State v. Youngblood, 173 Ariz. 502, 508 (1993); see also
Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (holding the same under the
United States Constitution). Nevertheless, the defendant is entitled to a
Willits instruction, which instructs the jury that if they find the State’s
explanation for the loss or failure to preserve evidence inadequate, “they
may draw an inference that [the] evidence would have been unfavorable to
the state.” Youngblood, 173 Ariz. at 506. Here, the evidence might have
aided Martinez, and there is no evidence of bad faith on the part of the
police. According to the State, the photos were lost in a change of their
records management system and the police simply did not think that it was
necessary to further investigate the cars or initial scene. The parties argued
the significance of the lost evidence, and the court gave a Willits instruction
to the jury. Therefore, there was no denial of due process on this basis. See
Youngblood, 173 Ariz. at 506-07.

¶17            We have read and considered counsel’s brief and fully
reviewed the record for reversible error, see Leon, 104 Ariz. at 300, and find
none. All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, counsel
represented Martinez at all stages of the proceedings, and the sentences
imposed were within the statutory guidelines, except for the portion
requiring Martinez to pay for his DNA testing. In State v. Reyes, we held
that “[t]he legislature did not direct that convicted felons pay the cost of the
testing.” 232 Ariz. 468, 472, ¶ 11 (App. 2013). Therefore, “because [A.R.S.]
§ 13-610 does not require a convicted defendant to be assessed the cost of
his DNA testing, there was no basis for the provision to be imposed” and
the order that Martinez pay for his DNA testing must be vacated. See id. at
¶ 14. Accordingly, we decline to order further briefing and affirm
Martinez’s convictions and sentences, but vacate the portion of the
sentencing order requiring Martinez to pay for his DNA testing. See id.
(vacating DNA payment portion of sentence).

¶18          Upon filing of this decision, defense counsel shall inform
Martinez of the status of the appeal and of his future options. Counsel has
no further obligations unless, upon review, counsel finds an issue
appropriate for submission to the Arizona Supreme Court by petition for


                                       5
                           STATE v. MARTINEZ
                           Decision of the Court

review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Martinez shall
have thirty days from the date of this decision to proceed, if he desires, with
a pro per motion for reconsideration or petition for review.

                               CONCLUSION

¶19          For the foregoing reasons, we affirm Martinez’s convictions
and sentences, but vacate the portion of the sentencing order requiring
Martinez to pay for his DNA testing.




                        AMY M. WOOD • Clerk of the Court
                         FILED: AA




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