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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                      JONATHAN JESSIE CORRALES,
                             Appellant.

                             No. 1 CA-CR 14-0456
                               FILED 9-15-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-156533-001
             The Honorable Pamela Hearn Svoboda, Judge

                                  AFFIRMED


                                   COUNSEL

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

Droban & Company, PC, Anthem
By Kerrie M. Droban
Counsel for Appellant
                            STATE v. CORRALES
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Maurice Portley joined.


O R O Z C O, Judge :

¶1             Jonathan Jessie Corrales appeals his convictions and
sentences for armed robbery, theft, four counts of aggravated assault,
attempted first-degree murder, two counts of misconduct with weapons,
and discharge of a weapon from a vehicle. On appeal, Corrales argues: 1)
the trial court erred in giving the jury a modified Willits1 instruction; 2) the
prosecutor committed prosecutorial misconduct during closing argument;
and 3) the trial court erred in denying Corrales’ motion for directed verdict
on the charge of armed robbery. For the following reasons, we affirm.

                 FACTS2 AND PROCEDURAL HISTORY

¶2            On October 28, 2011, Corrales entered a jewelry store and
indicated he was interested in purchasing a necklace. Each piece of jewelry
Corrales looked at was valued at several thousand dollars and displayed in
a locked showcase. At Corrales’ request, the owner removed two chain
necklaces for Corrales to handle. When Corrales requested to see a third
necklace, the owner asked him to return those he already had in his
possession. Instead of returning the items, Corrales turned to leave with
the necklaces. After finding the store’s entry glass door locked, Corrales
took out a gun and shot at the glass door so he could exit.

¶3            Corrales fled the scene and was picked up outside the store
by a man driving a black Monte Carlo with two red racing stripes on the
front hood and an Arizona Cardinal’s football license plate. Phoenix police
officer Jason Bloom (Officer Bloom) was on patrol that day, when he heard
the police dispatcher send out a report of an armed robbery along with the
description of the Monte Carlo identified as the getaway car. Shortly
thereafter, Officer Bloom observed a black Monte Carlo with red racing


1      See State v. Willits, 96 Ariz. 184 (1964).

2      On appeal, we construe the evidence in the light most favorable to
sustaining the verdict. State v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998).


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                            Decision of the Court

stripes, and began following the car. Two other officers joined in the
pursuit, activating their emergency lights and sirens. The Monte Carlo did
not stop, but instead attempted to evade police and “continued to run.”
During the pursuit, Corrales leaned out of the car and shot at the officers
from the Monte Carlo passenger’s side window. One of Corrales’ shots
struck Officer Bloom’s patrol vehicle, shattering the windshield and forcing
him to leave the pursuit. The other officers continued the pursuit and
Corrales fired additional shots.

¶4            Corrales and another individual were later arrested and
charged with several felonies arising from the armed robbery and police
pursuit. At trial, Officer Bloom identified Corrales as the shooter. Officer
Bloom also testified that after his initial suspect identification, he called the
case agent Detective W. Bishel to provide a more affirmative identification,
but neither Officer Bloom nor Detective Bishel prepared a supplemental
report regarding this conversation.

¶5            A jury convicted Corrales of all charges against him. The trial
court sentenced him to eighteen years’ imprisonment with credit for 961
days’ presentence incarceration on Counts one and two. Corrales was also
sentence to twenty-eight years’ imprisonment on the remaining Counts,
with this term to be served consecutive to Counts one and two. Corrales
timely appealed, and we have jurisdiction pursuant to Article 6, Section 9
of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) §§ 12-
120.21.A.1 and 13-4031 and -4033.A (West 2015).3

                                DISCUSSION

I.     Modified Willits Instruction

¶6           Corrales argues the trial court erred in failing to include
certain standard language in its Willits instruction. At trial, the court
provided the following instruction:

       If you find that the State has failed to preserve evidence
       whose contents or quality are important to the issues in this
       case, then you should weigh the explanation, if any given for
       the loss or unavailability of the evidence. If you find that such
       explanation is inadequate, then you may draw inference
       unfavorable to the State.


3     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.


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                           Decision of the Court

Corrales claims that the trial court should have also included as part of the
instruction the following: “an inference unfavorable to the State which, in
and of itself may create reasonable doubt as to the defendant’s guilt.”

¶7             A defendant is entitled to a Willits instruction when the State
fails to act reasonably in preserving any obviously material, exculpatory
evidence, resulting in prejudice to the defendant. State v. Perez, 141 Ariz.
459, 464 (1984). Pre-trial disclosures by the State indicated that its witness,
Officer Bloom, had not identified anyone when shown a photographic line-
up that included a picture of Corrales. As previously stated, Officer Bloom
identified Corrales as the shooter at trial. Officer Bloom also testified that
he called Detective Bishel to provide a more affirmative identification after
his initial identification, but no supplemental report was prepared before
trial. Corrales argued that the in-trial identification by Officer Bloom was
“trial by ambush.”

¶8            The trial court determined: 1) no evidence was lost or
destroyed, 2) the State did not act in bad faith, and 3) the officers did not
violate police policies by failing to supplement Detective Bishel’s report.
Moreover, Officer Bloom’s identification of Corrales was not exculpatory,
but rather was inculpatory. Thus, a Willits instruction was not necessary
using the standard set forth in Perez.

¶9             However, the trial court did find that the State’s failure to
disclose information about the testimony of one of its witnesses in advance
of trial was sanctionable and determined that providing a modified Willits
instruction was appropriate. Thus, the court excluded the standard Willits
language that Corrales argues should have been included.

¶10            A trial court’s choice of sanction for late disclosure is
discretionary. State v. Patterson, 230 Ariz. 270, 276, ¶ 24 (2012). We will not
reverse absent a showing of prejudice. Id. Corrales has not explained how
he was prejudiced by the excluded language and in review of the record on
appeal, we find none. The trial court’s choice of sanction was therefore not
an abuse of discretion.

II.     Prosecutorial Misconduct

¶11           Corrales asserts the prosecutor’s comment in rebuttal closing
that “I can guarantee you that if there was something nefarious going on
with the State and the witnesses, you would have gotten an instruction
regarding that,” resulted in a “watering down” of the trial court’s modified
Willits instruction and amounted to prosecutorial misconduct. We
disagree.


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                            Decision of the Court

¶12           In determining whether prosecutorial misconduct has
occurred, the court considers whether the prosecutor calls attention to
matters that should not be considered and the probability that the jury was
improperly influenced by the comments. State v. Newell, 212 Ariz. 389, 402,
¶ 60 (2006). Prosecutorial misconduct constitutes reversible error when, in
the context of all the evidence presented at trial, the misconduct was so
“pronounced and persistent” it infected the trial with unfairness so
profound any resulting conviction would be a denial of due process. State
v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007); State v. Hughes, 193 Ariz. 72, 79, ¶
26 (1998).

¶13            Corrales provides no explanation or evidence that suggests
the prosecutor’s statements improperly swayed or misled the jury to a
verdict otherwise unsupported by the record. Officer Bloom was not the
only eyewitness to identify Corrales. Corrales’ DNA was found on the gun
used in the commission of the crimes. His hand prints were found in the
Monte Carlo. Given the totality of the evidence presented, the conduct in
question would not amount to prosecutorial misconduct. See Newell, 212
Ariz. at 403, ¶ 67.

III.     Armed Robbery Conviction

¶14            Finally, Corrales argues the trial court erred in denying his
request for a directed verdict on the charge of armed robbery. See Ariz. R.
Crim. P. 20. Specifically, he contends there was no evidence that he used
force in taking of property from the jewelry store. We review claims of
insufficient evidence de novo. State v. Bible, 175 Ariz. 549, 595 (1993).

¶15           In evaluating the sufficiency of the evidence, “the controlling
question is solely whether the record contains ‘substantial evidence to
warrant a conviction.’“ State v. West, 226 Ariz. 559, 562, ¶ 14 (2011) (quoting
  Ariz. R. Crim. P. 20.a). Substantial evidence is “such proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. at 562, ¶
16 (internal punctuation and citation omitted). “To set aside a jury verdict
for insufficient evidence it must clearly appear that upon no hypothesis
whatever is there sufficient evidence to support the conclusion reached by
the jury.” State v. Arredondo, 155 Ariz. 314, 316 (1987).

¶16          A person commits robbery if “in the course of taking any
property of another from his person or immediate presence and against his
will, such person threatens or uses force against any person with intent
either to coerce surrender of property or to prevent resistance to such



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                            Decision of the Court

person taking or retaining property.” A.R.S. § 13–1902.A (West 2015).
Armed robbery occurs when a person uses or threatens to use a deadly
weapon in the course of committing a robbery. A.R.S. § 13–1904.A.2 (West
2015).

¶17            Corrales argues he did not commit armed robbery by taking
the necklaces because he did not draw his gun until after he had possession
of the chains. Corrales contends that because he only used his gun to shoot
out the store’s locked glass door and did not point the weapon at anyone,
there was no contemporaneous use of threat or force in the taking of
property and as such, he did not commit armed robbery.

¶18            Under Arizona law, robbery is a “continuous offense,” which
“includes any of the defendant’s acts beginning with the initiation and
extending through the flight from a robbery.” A.R.S § 13–1901.2 (West
2015). Corrales’ argument that he only used the gun to “shoot his way out
of the store” is sufficient to suggest to a trier of fact that use of the weapon
was to facilitate flight from the robbery. Accordingly, we hold that the trial
court did not err by denying Corrales’ motion for judgment of acquittal on
the charge of armed robbery.

                               CONCLUSION

¶19          For the foregoing reasons, we affirm Corrales’ convictions
and sentences.




                                   :ama




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