                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
                     AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                      IN THE
              ARIZONA COURT OF APPEALS
                                  DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                          v.

                 RUBEN MANUEL BERMUDEZ, Appellant.

                              No. 1 CA-CR 13-0679
                               FILED 09-25-2014


           Appeal from the Superior Court in Maricopa County
                      No. CR2012-123155-001 DT
                  The Honorable Daniel J. Kiley, Judge

                                    AFFIRMED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist, III
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant
                          STATE v. BERMUDEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1            Ruben Manuel Bermudez appeals his robbery conviction.
He contends the trial court erred by denying his request for a Willits
instruction.1 For the reasons that follow, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2              B.P. was walking home one evening when Bermudez
approached and asked to use his cell phone. B.P. agreed, dialed a number
provided by Bermudez, and handed his phone to Bermudez. Bermudez
attempted several different calls, but none went through. After a final
failed call attempt, Bermudez punched B.P. in the face and ran away with
B.P.’s phone.

¶3             B.P., whose lip was swollen and whose nose was bleeding
profusely, flagged down a police car. He provided a description of his
assailant and of his cell phone — a slim, black touchscreen phone made by
Huewai with Cricket cellular service — which was broadcast to police
units in the area. Shortly thereafter, an officer detained Bermudez roughly
a half mile away. A cell phone was found in Bermudez’ pocket that
matched B.P.’s description. Though Bermudez claimed he owned the
phone, it rang when officers dialed a number that B.P. had provided.

¶4             The officers took B.P. to Bermudez’ location, where B.P.
identified Bermudez as his assailant. B.P. also identified the phone as his
and gave officers a four-digit PIN that they used to unlock the phone. The
officers then returned the phone to B.P. and took Bermudez into custody.

¶5           Bermudez was charged with one count of robbery, a class 4
felony.    The State alleged aggravating circumstances and prior
convictions. At trial, Bermudez requested a Willits instruction. Bermudez
argued that because he put ownership of the cell phone at issue by

1     State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).



                                      2
                            STATE v. BERMUDEZ
                             Decision of the Court

claiming it belonged to him, the police erred by returning the phone to
B.P. on the night of the incident. He further argued that the failure to
preserve potentially exculpatory evidence caused him prejudice. The trial
court declined to give a Willits instruction.

¶6             The jury found Bermudez guilty of robbery and found one
aggravating factor. The trial court determined that Bermudez had three
prior felony convictions and sentenced him to ten years in prison, with
498 days of presentence incarceration credit; he was also ordered to pay
$52.00 in restitution.

¶7            Bermudez timely appealed. 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), 13-4031, and -4033(A)(1).

                                DISCUSSION

¶8             We review the trial court’s refusal to give a Willits
instruction for an abuse of discretion. State v. Fulminante, 193 Ariz. 485,
503, ¶ 62, 975 P.2d 75, 93 (1999). A Willits instruction is appropriate if the
defendant proves 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.” State v.
Glissendorf, 235 Ariz. 147, 150, ¶ 8, 329 P.3d 1049, 1052 (2014). “A trial
court does not abuse its discretion by denying a request for a Willits
instruction when a defendant fails to establish that the lost evidence
would have had a tendency to exonerate him.” Fulminante, 193 Ariz. at
503, ¶ 62, 975 P.2d at 93. The defendant need not establish that the
evidence would certainly exonerate him, but he must do more than
“simply speculate about how the evidence might have been helpful.” See
Glissendorf, 235 Ariz. at 150, ¶¶ 9-10, 329 P.3d at 1052.

¶9            Neither in the trial court nor on appeal has Bermudez clearly
articulated how the cell phone’s presence would have had a tendency to
exonerate him or how its absence at trial prejudiced him. As the State
correctly observes, the trial evidence established that the phone in
Bermudez’ possession matched B.P.’s detailed description; the phone
unlocked with a passcode B.P. provided; and the phone rang when a
number B.P. gave police was dialed. Bermudez has never explained how
having the phone at trial would have assisted his defense or asserted that
he could identify characteristics of the phone that only an owner would
know. Under these circumstances, the trial court did not abuse its
discretion by declining to give a Willits instruction. See, e.g., State v. Speer,



                                       3
                           STATE v. BERMUDEZ
                            Decision of the Court

221 Ariz. 449, 457, ¶ 41, 212 P.3d 787, 795 (2009) (observing that defendant
did not demonstrate how missing evidence might have exonerated him or
mitigated his participation in the crime); State v. Smith, 158 Ariz. 222, 227,
762 P.2d 509, 514 (1988) (noting there was “nothing except speculation” to
suggest that license plate number of get-away vehicle, written on missing
piece of paper, was not the defendant’s); State v. Perez, 141 Ariz. 459, 464,
687 P.2d 1214, 1219 (1984) (holding no abuse of discretion in denying
Willits instruction where defendant “presented no evidence to support his
assertion that had the [destroyed] videotape been presented to the jury, he
would have been acquitted . . . because the tape would have proven his
mistaken identity defense”).

                              CONCLUSION

¶10           For the reasons stated, we affirm Bermudez’ conviction and
sentence.




                                   :gsh




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