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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  DOUGLAS DOYLE DILLON, Appellant.

                             No. 1 CA-CR 16-0697
                               FILED 6-6-2017


           Appeal from the Superior Court in Coconino County
                         No. S0300CR201500022
                  The Honorable Dan R. Slayton, Judge

                       AFFIRMED AS CORRECTED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael T. O’Toole
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant


                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
                             STATE v. DILLON
                            Decision of the Court

W I N T H R O P, Judge:

¶1            Douglas Doyle Dillon (“Appellant”) appeals his convictions
and sentences for residential burglary, theft, and criminal damage.
Appellant argues that the trial court abused its discretion in denying his
requests for a jury instruction pursuant to State v. Willits, 96 Ariz. 184, 191,
393 P.2d 274, 279 (1964). Finding no abuse of discretion, we affirm;
however, we correct the sentencing minute entry to reflect that Appellant
was sentenced as a repetitive offender.1

                 FACTS AND PROCEDURAL HISTORY2

¶2           The State charged Appellant by indictment with six crimes
resulting from four residential burglaries/thefts in Coconino County in
2014. A jury convicted Appellant as charged of three counts of second-
degree burglary, each a class three felony (Counts 1, 3, and 5); theft of
property with a value of $3,000 or more, a class four felony (Count 2); and
two counts of criminal damage, one a class two misdemeanor (Count 4),
and the other a class six felony (Count 6). The trial court sentenced
Appellant to consecutive and concurrent minimum terms of imprisonment
in the Arizona Department of Corrections totaling twelve years.

¶3            We have jurisdiction over Appellant’s timely appeal. See
Ariz. Const. art. 6, § 9; A.R.S. §§ 12–120.21(A)(1) (2016), 13–4031 (2010), 13–
4033(A) (2010).

                                 ANALYSIS

¶4           Appellant argues the trial court abused its discretion in
denying his requests for a Willits instruction based on the State’s failure to


1      The trial court’s sentencing minute entry indicates Appellant was
sentenced as a non-repetitive offender; however, the court found he had
one historical prior conviction and sentenced him as a repetitive offender.
See Ariz. Rev. Stat. (“A.R.S.”) § 13–703(B) (Supp. 2016). Accordingly, we
correct the court’s September 21, 2016 sentencing minute entry to reflect
that Appellant’s convictions are repetitive offenses. See State v. Vandever,
211 Ariz. 206, 210, ¶ 16, 119 P.3d 473, 477 (App. 2005) (recognizing this court
must correct an inadvertent error found in the sentencing minute entry).

2     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).


                                       2
                              STATE v. DILLON
                             Decision of the Court

obtain custody of and preserve an outside surveillance video that
purportedly showed the suspect vehicle at the December 23, 2014 burglary
of William S.’s residence. Relying on State v. Perez, 141 Ariz. 459, 687 P.2d
1214 (1984), Appellant maintains that a Willits instruction was necessary
because, had the Coconino County Sheriff’s Office made a better effort to
obtain the video from William S., the video might have been preserved.

¶5            We review a trial court’s denial of a Willits instruction for an
abuse of discretion. State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7, 329 P.3d 1049,
1052 (2014). “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.” State v. Smith, 158 Ariz. 222, 227, 762 P.2d
509, 514 (1988) (citing Perez, 141 Ariz. at 464, 687 P.2d at 1219). “To show
that evidence had a ‘tendency to exonerate,’ the defendant must do more
than simply speculate about how the evidence might have been helpful”;
instead, “there must be a real likelihood that the evidence would have had
evidentiary value.” Glissendorf, 235 Ariz. at 150, ¶ 9, 329 P.3d at 1052.

¶6             As an initial matter, the State’s suggestion that a Willits
instruction was unwarranted simply because the State never had
possession of the unpreserved video is, by itself, unpersuasive. See Perez,
141 Ariz. at 463, 687 P.2d at 1218 (recognizing that law enforcement officers
should attempt to secure possession of potentially relevant materials by
requesting them from the owner or, if necessary, pursuant to a search
warrant). Although the State has no affirmative duty to seek out and gain
possession of potentially exculpatory evidence, the State does have a duty
to act in a timely manner to ensure the preservation of obviously material
evidence when it is aware of that evidence and the evidence is reasonably
within its grasp. Id. “This rule is necessary to assure that the police are
neither intentionally selective or elusive, nor careless, negligent, or lazy, in
seizing and assuring the preservation of material evidence.” Id. at 464, 687
P.2d at 1219.

¶7              Nevertheless, the record supports the State’s contention that
the video at issue was not reasonably accessible to law enforcement. Here,
Deputy Shouse viewed the outside surveillance video at William S.’s home
shortly after the burglary of the home on December 23, 2014. Although the
sheriff’s office requested the video (and another surveillance video showing
the inside of William S.’s garage), William S. sent only the inside
surveillance video. The detective who received that video later informed
the prosecutor that he had followed up on the request for the outside video
but had been informed that William S. “was unable to get [the outside


                                        3
                            STATE v. DILLON
                           Decision of the Court

video] to record and no longer has that particular footage.”3 Thus, in
contrast to the situation in Perez, the record in this case does not
demonstrate that the missing video was reasonably accessible.

¶8             Moreover, even if the video had been accessible, Appellant
fails to make the requisite showing of prejudice. As the trial court correctly
recognized, Appellant’s contention that the surveillance video would have
tended to exonerate him is based solely on speculation. See Glissendorf, 235
Ariz. at 150, ¶ 9, 329 P.3d at 1052. Appellant has presented no evidence to
support his assertion that the missing video would have supported his
mistaken identity defense, let alone that had the video been presented to
the jury, he would have been acquitted of the December 23, 2014 burglary.4
Because there is no evidence that Appellant was prejudiced by the failure
to obtain and preserve the video, the trial court did not abuse its discretion
when it denied Appellant’s request for a Willits instruction. See Perez, 141
Ariz. at 464, 687 P.2d at 1219.

¶9             Although not raised as a separate issue, Appellant also states
the prosecutor elicited precluded testimony regarding the suspect vehicle
in the burglary of William S.’s home. Even were we to agree with
Appellant’s characterization of the testimony—which we do not—
Appellant did not object at trial and does not further explain or develop his
argument on appeal; thus, he has waived it absent fundamental, prejudicial
error, see State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-26, 115 P.3d 601,
607-08 (2005), which has not been shown here.




3      At trial, Deputy Shouse testified that, when he met with William S.
on the day of the burglary, William S. “was having problems getting [his
video] equipment to operate,” and was unable to immediately download
the video for the deputy. William S. testified he had not sent the outside
video to the sheriff’s office because “we couldn’t download that video.
Don’t know why.”

4      If anything, it is reasonable to infer the outside video would have
further helped to inculpate Appellant. As the trial court noted to defense
counsel during argument on Appellant’s motion in limine, “candidly I[‘ve]
got to say [the inside tape shows] a pretty good likeness of your client in
the garage.”


                                      4
                           STATE v. DILLON
                          Decision of the Court

                             CONCLUSION

¶10          Appellant’s convictions and sentences are affirmed. The trial
court’s September 21, 2016 sentencing minute entry is corrected to reflect
Appellant was sentenced as a repetitive offender.




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




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