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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       DANIEL J. MATTA, Appellant.

                             No. 1 CA-CR 18-0197
                               FILED 2-12-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-130083-001
                  The Honorable Mark H. Brain, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
                             STATE v. MATTA
                            Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge James P. Beene joined.


W E I N Z W E I G, Judge:

¶1           Daniel J. Matta appeals his conviction and sentence for sexual
conduct with a minor, M.L., a class 2 felony. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            M.L. lived with her mother and stepfather, Matta, for several
years in Arizona. She moved to New York in February 2017 and contacted
the Lockport (New York) and Phoenix Police Departments in June 2017,
reporting that Matta had sexually abused her in Arizona. The incident
occurred in November 2015, when M.L. was a 17-year-old minor still living
with Matta.

¶3            The matter was ultimately assigned to Phoenix Police
Detective Sonia Stanley, who interviewed M.L. in greater depth. Detective
Stanley traveled to New York. She arranged for M.L. to place a
confrontation call to Matta from the Lockport Police Department, which
had agreed to host and record the call. M.L. called Matta from the Lockport
Police Department after Detective Stanley was assured the Department’s
recording equipment had been checked and was working. Detective
Stanley believed the conversation was recorded. After the call, a Lockport
Police detective handed Detective Stanley a CD recording of the call.

¶4            After returning to Arizona, Detective Stanley discovered the
recorded conversation was largely inaudible with brief audible snippets as
the conversation cut in and out. She prepared a written summary of what
she remembered from the call and asked the Lockport Police Department
for a “working copy” of the recording. Lockport Police confirmed the
original recording was flawed, too.

¶5           The investigation continued. Detectives interviewed Matta
and M.L.’s mother, Amanda Matta. Matta admitted something had
occurred on the evening of the alleged incident and apologized, but denied
he sexually assaulted M.L. Mrs. Matta first told investigators that Matta



                                     2
                             STATE v. MATTA
                            Decision of the Court

admitted the alleged misconduct in their initial conversations, but she later
recanted her statement.

¶6              Matta was indicted for one count of sexual conduct with a
minor, a class 2 felony. Before trial, Matta argued the court should either
dismiss the charge or provide an adverse-inference jury instruction under
State v. Willits, 96 Ariz. 184 (1964), because the police department failed to
adequately “preserve” the confrontation call. The State countered that
neither dismissal nor a Willits instruction was appropriate because “the
confrontation call did not record” after the equipment malfunctioned and
attached an explanation from the Lockport Police Department. The
superior court ultimately denied the motion because police are “not
required to record anything in the first place” and “[i]t just seems to me that
this is not the situation which Willits is directed to.”

¶7           The jury found Matta guilty as charged, and the court
sentenced Matta to five years’ imprisonment. Matta timely appealed. We
have jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A).

                               DISCUSSION

¶8             Matta argues the superior court erred by denying his motion
for an adverse-inference instruction under Willits because police
unsuccessfully recorded the confrontation call. We review the denial of a
request for a Willits instruction for an abuse of discretion. State v.
Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). 1

¶9             Willits authorizes the court to provide an adverse-inference
jury instruction “when the state loses or destroys evidence that would have
been useful to the defense, even if that destruction is innocent.” Id. A
defendant who seeks a Willits instruction “must prove 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.” Id. at 150, ¶ 8 (quotation omitted).

¶10          The superior court did not abuse its discretion because
Phoenix Police never acquired the evidence that Matta insists it lost or
destroyed. The record demonstrates that police tried to record the

1       Matta has not argued on appeal that the superior court should have
dismissed all charges and thus abandoned and waived the argument. See
State v. Carver, 160 Ariz. 167, 175 (1989).



                                      3
                             STATE v. MATTA
                            Decision of the Court

conversation as evidence in the investigation but failed. The equipment
malfunctioned—despite assurances from Lockport Police—leaving an
erratic, spotty recording.      Nor is an adverse-inference instruction
appropriate when the State fails to marshal better or additional evidence.
See State v. Murray, 184 Ariz. 9, 33 (1995) (defendant is not entitled to a
Willits instruction “merely because a more exhaustive investigation could
have been made”); State v. Willcoxson, 156 Ariz. 343, 346 (App. 1987) (“We
do not believe that a failure to pursue every lead or gather every
conceivable bit of physical evidence will require a Willits instruction.”).

                                CONCLUSION

¶11          We affirm.




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




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