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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 DONALD ROBERT HOPKINS, Appellant.

                             No. 1 CA-CR 18-0776
                               FILED 1-16-2020


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400225
           The Honorable Billy K. Sipe Jr., Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                           STATE v. HOPKINS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1           Donald Hopkins appeals his convictions and sentences for
failure to remain at the scene of an accident, endangerment, criminal
damage, and aggravated assault. For the following reasons, we affirm.

                            BACKGROUND1

¶2             While traveling on an interstate highway after dusk, P.M.
spotted an oncoming vehicle in his lane and immediately “pulled hard to
the right” to avoid a collision. Despite this evasive maneuver, the oncoming
pickup truck struck and flipped P.M.’s Honda Accord. Once the Honda
came to a stop on the side of the highway, P.M. crawled out, having
sustained injuries to his face, arm, and back.

¶3            Meanwhile, the truck continued on toward oncoming traffic
and R.W., the driver of a BMW that had been trailing P.M.’s Honda,
successfully veered to the right to avoid a head-on collision. Without
stopping, the driver of the pickup truck continued down the highway for a
brief period, but then drove off the road, crossed a fence barrier, circled
back, and stopped on the right side of the highway.

¶4            After pulling over, R.W. ran to the pickup truck while some
of his passengers ran toward the overturned Honda. Concerned that the
truck driver may attempt to “flee the scene,” R.W. approached him,
determined he was the sole occupant of the vehicle, and pulled him out of
the truck through the passenger-side door. After removing him from the
truck, R.W. asked the driver whether he was injured and told him that the
police had been notified. In response, the truck driver asked whether he
had “kill[ed] anybody” and R.W. told him that everyone was “all right.”
R.W. then sat with the truck driver for “a short period of time” before



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


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                              STATE v. HOPKINS
                              Decision of the Court

returning to his vehicle. Looking back a few moments later, R.W. saw the
truck driver “walking off into the desert.”

¶5            By the time a police officer responded to the scene, the driver
of the truck was gone. After R.W. provided a description of the truck driver,
the officer searched the truck, found a cell phone, and showed R.W. a
picture from the phone. R.W. confirmed that the pictured individual was
the truck driver.

¶6            While searching the area around the pickup truck, the officer
discovered “boot prints” in the desert sand, but the prints ended at a rocky
wash bottom. The next day, the officer received a report of an individual
matching the truck driver’s description spotted in a town approximately
five miles from the site of the accident.

¶7             Acting on that information, the officer drove into town and
approached the reported individual, Hopkins, in a restaurant. The officer
immediately recognized Hopkins as the person from the cell phone
photograph. After a brief exchange, the officer advised Hopkins of his
Miranda rights and took him into custody. 2 When asked, Hopkins admitted
that the last thing he remembered was getting “really drunk” and then
waking, injured, at the side of a highway. Although Hopkins was not the
registered owner of the pickup truck, he acknowledged that the vehicle and
its keys had been left at his home but consistently denied driving the pickup
truck at the time of the accident.

¶8            After questioning Hopkins, the officer drove him to the
accident scene, removed Hopkins’ boots, and photographed the boots next
to the boot prints left in the sand. Upon comparison, the officer determined
that Hopkins’ boots matched the boot prints “perfectly.”

¶9            The State charged Hopkins with one count of failure to
remain at the scene of an accident involving injury (Count 1); five counts of
endangerment (Counts 2-6); one count of criminal damage (Count 7); one
count of aggravated assault (Count 8); and one count of aggravated driving
while under the influence (Count 9). The State also alleged that Hopkins
had multiple prior felony convictions.

¶10           After a three-day trial, a jury found Hopkins guilty of all
charges except the aggravated driving under the influence count. Nearly
three years later, Hopkins was arrested pursuant to a bench warrant and


2   Miranda v. Arizona, 384 U.S. 436 (1966).


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                                STATE v. HOPKINS
                                Decision of the Court

sentenced to an aggregate term of ten years’ imprisonment. Hopkins timely
appealed.

                                    DISCUSSION

¶11           As his sole issue on appeal, Hopkins argues the superior court
improperly denied his request for a Willits instruction. 3 First, he contends
the court applied an incorrect legal standard in evaluating and ultimately
denying his request. Second, he asserts he was entitled to the instruction
because the State failed to preserve the pickup truck, and therefore any
potential exculpatory value it may have had was lost. Specifically, Hopkins
argues that had the truck been preserved, fingerprint and DNA evidence
may have shown that he was not the driver.

¶12           “We review rulings regarding a Willits instruction for [an]
abuse of discretion.” State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). We
will affirm the superior court’s decision “if it is correct for any reason, even
if that reason was not considered” by the court. Glaze v. Marcus, 151 Ariz.
538, 540 (App. 1986).

¶13            At trial, Hopkins’ defense was three-fold: (1) he was not the
driver of the pickup truck; (2) if he was the driver, his erratic and dangerous
driving may have been caused by a medical issue; or (3) if he was the driver,
his erratic and dangerous driving may have been caused by a mechanical
problem. During the State’s case-in-chief, R.W. testified, without
equivocation, that the pickup truck was occupied by only one person—the
driver. After confirming that he “g[o]t a good look” at the truck driver, R.W.
positively identified Hopkins, in-court, as that individual. Later, the
investigating officer corroborated R.W.’s in-court identification, testifying
that Hopkins acknowledged ownership of a brown jacket that had been
found in the pickup truck the night of the accident and opining that
Hopkins’ boots were a “perfect” match to the boot prints tracked from the
pickup truck into the desert.

¶14            On cross-examination, the officer acknowledged, however,
that the State did not preserve the pickup truck as evidence, explaining the
police impound lot was “completely full” and retention of the vehicle did
not appear necessary. Building on that admission, defense counsel elicited
testimony from a defense investigator that the pickup truck could not be
located for inspection.



3   State v. Willits, 96 Ariz. 184 (1964).


                                             4
                            STATE v. HOPKINS
                            Decision of the Court

¶15           During the settling of final jury instructions, defense counsel
requested a Willits instruction based on the State’s failure to preserve the
pickup truck for defense inspection. The superior court denied the request,
finding: (1) Hopkins substantially delayed his attempt to locate the pickup
truck, waiting until eight months after the accident; (2) no evidence
suggested bad intent by the State in failing to preserve the pickup truck;
and (3) no evidence suggested the pickup truck could provide “potentially
helpful evidence.” When defense counsel urged the court to reconsider its
ruling, the court cited State v. Tinajero, 188 Ariz. 350 (App. 1997), and stated
there was no basis to find that the pickup truck may have contained
exculpatory evidence.

¶16           A Willits instruction permits a jury to infer from the State’s
failure to preserve evidence that such evidence “would have been
exculpatory.” State v. Fulminante, 193 Ariz. 485, 503, ¶ 62 (1999). “To be
entitled to a Willits instruction, a defendant 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.” Glissendorf, 235 Ariz. at 150, ¶ 8 (internal quotation omitted).
Speculation that “evidence might have been helpful” does not establish
prejudice. Id. at ¶ 9. Instead, the defendant must show “a real likelihood
that the evidence would have had evidentiary value.” Id.

¶17             As noted by Hopkins, the superior court relied on Tinajero for
the proposition that a Willits instruction is not warranted unless an
unpreserved object’s exculpatory value was apparent before it was lost or
destroyed. 188 Ariz. at 355. But, in Glissendorf, our supreme court clarified
that the “apparent exculpatory value requirement” implied by some cases,
including Tinajero, “incorrectly conflated the due process analysis with that
for Willits instructions.” 235 Ariz. at 152, ¶ 18. Therefore, the superior court
applied an erroneous legal standard in denying Hopkins’ requested
instruction.

¶18           Citing State v. Hernandez, 246 Ariz. 543 (App. 2019), Hopkins
contends that DNA and fingerprint evidence from the pickup truck could
have exculpated him. Like this case, Hernandez involved an erratic driver
who caused another driver to swerve to avoid a collision. 246 Ariz. at 545,
¶ 2. In Hernandez, the driver of the other vehicle “locked eyes” on the erratic
driver for only “a second to two seconds,” but positively identified
Hernandez as the erratic driver, notwithstanding that in addition to
Hernandez, two other occupants fled the erratically-driven vehicle on foot.
Id. at 545, ¶¶ 2–3. In finding that the superior court erred by denying
Hernandez’s request for a Willits instruction based on the State’s failure to


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                           STATE v. HOPKINS
                           Decision of the Court

preserve the vehicle at issue, this court specifically noted that a photograph
admitted at trial clearly showed “several visible fingerprints both on the
window and the driver’s door frame.” Because the validity of the driver
identification was disputed, Hernandez had met his burden of
demonstrating that the evidence, if preserved, would have been potentially
helpful to him. Id. at 548–49, ¶¶ 18–20.

¶19           Though similar in some respects, Hernandez is readily
distinguishable because the identification evidence in this case was
overwhelming. First, R.W. ascertained and testified unequivocally that the
pickup truck was occupied by only one person, the driver. Second, R.W.
did not look at the driver for just a second or two, but physically removed
him from the vehicle, spoke with him, sat with him for a brief period, and
then looked back and saw him walking away. Third, within minutes of the
accident, a police officer retrieved a cell phone from the pickup truck and
R.W. identified Hopkins as the truck driver from a cell phone photograph.
Fourth, Hopkins admitted that the brown jacket found inside the pickup
truck belonged to him. Fifth, Hopkins’ boots matched the boot prints
tracking away from the pickup truck. Sixth, Hopkins admitted that he had
access both to the pickup truck and its keys. Finally, Hopkins told the
investigating officer that he had only a vague recollection of the events that
happened the two days before his interrogation but admitted that he had
been very drunk and awoke injured by the highway. Given these facts, and
notwithstanding that Hopkins was wearing a black shirt when he was
approached by the investigating officer rather than a red shirt as reported
by R.W. on the evening of the accident, Hopkins failed to meet his burden
of showing that the pickup truck, if preserved, could have had a tendency
to produce exculpatory evidence.4 Although Hopkins also suggests that
the pickup truck may have had mechanical problems before the accident,
no evidence supports this contention and mere speculation does not
warrant a Willits instruction. Therefore, the superior court did not abuse its
discretion by denying Hopkins’ request for a Willits instruction.




4 Contrary to Hopkins’ appellate argument, no witness testified to “a
second man walking from the scene.” Instead, a highway operations
supervisor, employed by the Arizona Department of Transportation,
testified that the day after the accident, he saw a person who resembled the
individual in the cell phone photograph walking along the highway, and
that person was not Hopkins.


                                      6
                   STATE v. HOPKINS
                   Decision of the Court

                      CONCLUSION

¶20   For the foregoing reasons, we affirm.




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




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