                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                v.

                      CRAIG A. WILLIAMSON,
                            Appellant.

                     No. 2 CA-CR 2013-0566
                     Filed February 3, 2015


         Appeal from the Superior Court in Pima County
                      No. CR20121779004
              The Honorable Paul E. Tang, Judge

                           AFFIRMED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy Pignatella Cain, Assistant Attorney General, Tucson
Counsel for Appellee

The Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Appellant
                      STATE v. WILLIAMSON
                        Opinion of the Court


                             OPINION

Judge Vásquez authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Howard concurred.


V Á S Q U E Z, Judge:

¶1            After a jury trial, Craig Williamson was convicted of
various conspiracy charges for his participation in a plan to commit
a home invasion robbery to steal drugs. The trial court found he had
two or more historical prior felony convictions and sentenced him to
presumptive, concurrent terms of imprisonment totaling 15.75 years.
On appeal, Williamson argues the court erred by denying his
motions: (1) to dismiss for outrageous government conduct; (2) for a
mistrial when a police officer gave an opinion on an ultimate issue
while testifying at trial; (3) for a jury instruction concerning the
state’s destruction of evidence; and, (4) for a judgment of acquittal
and a new trial. He also argues the court erred when it required him
to stipulate to the elements of the offenses in order to receive a jury
instruction on the affirmative defense of entrapment. For the
following reasons, we affirm the convictions and sentences.

                Factual and Procedural Background

¶2           We view the evidence presented at trial in the light
most favorable to sustaining the convictions and resolve all
reasonable inferences against Williamson. See State v. Snider, 233
Ariz. 243, ¶ 2, 311 P.3d 656, 658 (App. 2013). In April 2012, Tucson
police officers Miguel Verdugo and Brandon Angulo were working
undercover with the Special Investigations Division, Street Crimes
Interdiction Unit.     Both officers had worked with M.C., a
confidential informant who informed Angulo “there was a home
invasion crew lined up to go to work.” The officers asked the
informant to set up a meeting for which they would use a “back
story” they had devised: Verdugo, using the name “Emilio,” would
be introduced as the nephew of a Mexican narcotics trafficker and
Angulo, using the name “Julian,” as Verdugo’s cousin. The persons


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                       STATE v. WILLIAMSON
                         Opinion of the Court

under investigation would be told that Verdugo and Angulo traffic
cocaine from Mexico and distribute it in Arizona but, because
Verdugo was “dissatisfied with [his] role in th[e] enterprise,” both
men wanted to “rip off [Verdugo’s] uncle” by stealing drugs from a
stash house.

¶3           On April 11, 2012, the informant introduced the officers
to Williamson’s brother, Chris, in the parking lot of an apartment
complex.1 Chris told the officers he was “[r]eady to do some work.”
When he stated “he had done burglaries before,” “Angulo made it
very clear to him that there wasn’t going to be a burglary.” Angulo
stated “that it would be basically a robbery of a stash of drugs and
that people would be guarding it and that people would be armed.”
The officers and Chris agreed to meet later to “discuss things.”

¶4          On April 13, the officers met Williamson, Chris, and
Randy Chapman at a restaurant. During that meeting, the officers
said there were as many “as 40 kilos” of cocaine they wanted the
defendants to steal from a drug stash house guarded by two men
with assault rifles and another man “possibly with a handgun.”
Williamson told the officers he had committed other home invasions
and stated he had a shotgun “he was ready to use” and he had a
“cattle prod that he intended to use during the home invasion.”
Williamson also “requested that [the officers] give him some
firearms.”

¶5           When the officers asked Williamson and the others
what they expected as payment for the home invasion, they said
they wanted half. And, “if they got 20 kilos of cocaine, they wanted
to cash out ten of it for cash. So if they had ten kilos for 19,000, that
would be $190,000 that they wanted to get cashed out and keep the


      1During that meeting, and all of the subsequent meetings with
the defendants, one of the officers wore a concealed camera that also
captured the audio portions of the conversations. The recordings
were played for the jury to supplement the testimony of various
witnesses, and the recordings and transcripts were admitted into
evidence.


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                      STATE v. WILLIAMSON
                        Opinion of the Court

additional ten kilos of cocaine for themselves.” Angulo told the
defendants that if they wanted to walk away, they could do so. All
of them responded that “they’re in.” At the next meeting on
April 17, the Williamson brothers and Chapman introduced the
officers to the fourth co-conspirator, Preston Adams, and Angulo
explained the details of the home invasion to him.

¶6           On the afternoon of May 2, the officers met the
Williamson brothers in a grocery store parking lot to give them $60.
They had requested the money to buy masks, gloves, pepper spray,
and plastic zip ties for the home invasion. The final meeting
between the officers and all four defendants took place later that
evening in the parking lot of a shopping mall. Verdugo and Angulo
drove to the meeting in separate undercover vehicles, one of which
would be provided to the defendants for the home invasion. The
officers opened the trunk of one of the vehicles and showed
Williamson and the others four assault rifles and four ballistic vests
inside a duffel bag. Two defendants removed the duffel bag from
the trunk and the defendants “start[ed] to divide up the rifles and
the ballistic vests amongst themselves.” “Williamson was also
putting on rubber gloves at that time.” Verdugo and Angulo drove
away, and a SWAT team immediately moved in and took the
defendants into custody. During a search of the vehicle, Williamson
and the others had driven to the meeting, officers found pepper
spray, masks, rubber gloves, and plastic zip ties.

¶7          A grand jury indicted Williamson for conspiracy to
commit: kidnapping, armed robbery, aggravated robbery, and
possession of a narcotic drug. Williamson was convicted of the
charges and sentenced as described above. This appeal followed.
We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031,
and 13-4033(A)(1).

                 Outrageous Government Conduct

¶8           Williamson argues the trial court erred when it denied
his motion to dismiss based on outrageous government conduct. He
maintains “the State’s extensive involvement in dreaming up this
fictitious scheme—including the arbitrary amount of drugs and


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                       STATE v. WILLIAMSON
                         Opinion of the Court

illusory need for weapons and extra associates—transcends the
bounds of due process.” We generally review a trial court’s ruling
on a motion to dismiss criminal charges for an abuse of discretion,
but review constitutional issues de novo. State v. Rosengren, 199
Ariz. 112, ¶ 9, 14 P.3d 303, 306-07 (App. 2000); see also United States v.
Garza-Juarez, 992 F.2d 896, 903 (9th Cir. 1993) (district court’s
decision on due process claims reviewed de novo). “We defer to the
trial court’s factual findings that are supported by the record and not
clearly erroneous.” Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d at 307.

¶9             The outrageous government conduct defense first was
recognized by the United States Supreme Court in United States v.
Russell, 411 U.S. 423 (1973). There, the Court speculated that it “may
some day be presented with a situation in which the conduct of law
enforcement agents is so outrageous that due process principles
would absolutely bar the government from invoking judicial
processes to obtain a conviction.” Id. at 431-32. The Court stated
that the government’s conduct must be so egregious that it violates
notions of “‘fundamental fairness’” and is “‘shocking to the
universal sense of justice.’” Id. at 432, quoting Kinsella v. United States
ex rel. Singleton, 361 U.S. 234, 246 (1960). But, although the Court has
recognized the defense, to date, it has not reversed a conviction on
the basis of outrageous government conduct. And, we are aware of
only two reported cases in which federal appellate courts have
granted relief on that basis. See United States v. Twigg, 588 F.2d 373,
382 (3d Cir. 1978); Greene v. United States, 454 F.2d 783, 787 (9th Cir.
1971).

¶10          Although a claim of outrageous government conduct
and the defense of entrapment are similar in some respects, they are
legally distinct. The former is grounded in due process principles
and is resolved by the trial court as a matter of law before trial.
United States v. Mosley, 965 F.2d 906, 908-09 & 909 n.3 (10th Cir.
1992).    In contrast, the latter is based upon public policy
considerations and is determined by the trier of fact in light of the
evidence presented at trial. State v. Preston, 197 Ariz. 461, ¶¶ 5, 8, 4
P.3d 1004, 1007-08 (App. 2000). Additionally, the entrapment
defense focuses on whether the defendant was predisposed to
commit the crime, whereas a claim of outrageous government


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                      STATE v. WILLIAMSON
                        Opinion of the Court

conduct focuses on the government’s conduct. Mosley, 965 F.2d at
909.

¶11            To establish a claim of outrageous government conduct,
a defendant must show either: (1) the government “‘engineer[ed]
and direct[ed] a criminal enterprise from start to finish,’” United
States v. Williams, 547 F.3d 1187, 1199 (9th Cir. 2008), quoting United
States v. Gurolla, 333 F.3d 944, 950 (9th Cir. 2003), or (2) the
government used “excessive physical or mental coercion” to induce
the defendant to commit the crime, United States v. McClelland, 72
F.3d 717, 721 (9th Cir. 1995). The defense is “often raised but is
almost never successful.” United States v. Gamble, 737 F.2d 853, 857
(10th Cir. 1984). “[I]t is not outrageous for the government to induce
a defendant to repeat or continue a crime or even to induce him to
expand or extend previous criminal activity.” Mosley, 965 F.2d at
911. In inducing a defendant to repeat or expand his criminal
activity, it is not improper for the government to suggest the illegal
activity and provide supplies and expertise. Id. at 911-12. And,
“coercion of any type must be particularly egregious before it will
sustain an outrageous conduct defense.” Id. at 912. “‘[G]overnment
agents may employ appropriate artifice and deception in their
investigation,’” “make ‘excessive offers,’” and “even utilize ‘threats
or intimidation [if not] exceeding permissible bounds.’” Id., quoting
United States v. Lambinus, 747 F.2d 592, 595 (10th Cir. 1984), and
United States v. Biswell, 700 F.2d 1310, 1314 (10th Cir. 1983)
(alterations in Mosley). “In short, a defendant must meet an
extremely high standard.” United States v. Smith, 924 F.2d 889, 897
(9th Cir. 1991).

¶12          There is no single test for resolving a claim of
outrageous government conduct. “Rather, the inquiry appears to
revolve around the totality of the circumstances in any given case.”
Mosley, 965 F.2d at 910. Here, in denying Williamson’s motion to
dismiss, the trial court applied the factors identified in United States
v. Black, 733 F.3d 294, 303 (9th Cir. 2013), that previous cases have
considered “relevant to whether the government’s conduct was
outrageous.” The factors are as follows:




                                   6
                       STATE v. WILLIAMSON
                         Opinion of the Court

              (1) known criminal characteristics of the
              defendants; (2) individualized suspicion of
              the defendants; (3) the government’s role in
              creating the crime of conviction; (4) the
              government’s encouragement of the
              defendants to commit the offense conduct;
              (5) the nature of the government’s
              participation in the offense conduct; and
              (6) the nature of the crime being pursued
              and necessity for the actions taken in light
              of the nature of the criminal enterprise at
              issue.

Id. at 303.

¶13          In Black, as in this case, the defendants’ convictions
arose from a sting operation in which an undercover agent utilized a
confidential informant to recruit the defendants to commit an armed
robbery of a fictitious drug stash house. Id. at 297-98. On appeal,
the court noted that “[t]he reverse sting employed here largely falls
within the bounds of law enforcement tactics that have been held
reasonable.” Id. at 302. However, the court stated it was troubled by
two aspects of the particular sting operation. First, the operation
was based on a fiction, created and staged by the government. Id. at
302-03. Second, the government did not “infiltrat[e] a suspected
crew of home invasion robbers, or seduc[e] persons known to have
actually engaged in such criminal behavior.” Id. at 303. Rather, the
government targeted “places defined only by economic and social
conditions” to recruit “persons vulnerable to such a ploy who would
not otherwise have thought of doing such a robbery.” Id. But after
applying the factors, the court stated its “concerns [we]re mitigated
to a large degree” because the defendants told the agent they had
“engaged in similar criminal activity in the past,” “they joined the
conspiracy without any great inducement or pressure from the
government,” and “there [wa]s no significant evidence of
government overreaching or coercion.” Id. at 307-08. The court thus
concluded it was “satisfied the government did not cross the line.”
Id. at 310. We reach the same conclusion in this case.



                                   7
                       STATE v. WILLIAMSON
                         Opinion of the Court

¶14          Because the two cases are factually similar, we begin by
addressing the two concerns expressed by the court in Black—the
crimes of conviction were created and staged by the government,
and the government did not target known or suspected offenders,
but, instead, went “trolling” for persons who, because of their
vulnerable socio-economic status, might be willing to commit
offenses they otherwise would not commit. Id. at 302-03.

¶15          As to the first concern, we are not aware of any sting
operation that does not involve some degree of fiction, planning,
and staging by the government. See, e.g., State v. Ottar, 232 Ariz. 97,
¶ 1, 302 P.3d 622, 624 (2013) (affirming drug possession conviction
where defendant bought drugs in a reverse sting operation even
though defendant “d[id] not and would not have been allowed to
take them away”). We have found several cases that suggest sting
operations involving fictional drug stash house robberies are a fairly
common police practice, and courts consistently have found the
practice does not constitute outrageous conduct. See United States v.
Corson, 579 F.3d 804, 806 (7th Cir. 2009) (affirming conviction for
conspiracy to traffic drugs where there “never was any stash house
to rob”); United States v. Williams, 547 F.3d 1187, 1201 (9th Cir. 2008)
(“The government’s decision to use a sting operation to apprehend
this group of criminals reduced the risk of violence to the public and
is to be commended, not condemned. Though perhaps creative, the
government’s sting does not violate the universal sense of justice.”);
United States v. Rodriguez, 360 F.3d 949, 952, 960 (9th Cir. 2004)
(affirming conviction where defendants agreed to raid a fictitious
drug stash house); United States v. Sanchez, 138 F.3d 1410, 1413-14
(11th Cir. 1998) (finding no outrageous conduct where government
created plan to rob a “non-existent” drug stash house). Thus, we
conclude the fictional “back story” used by the officers in this case
does not rise to the level of outrageous conduct.

¶16          Regarding the second concern expressed by the court in
Black, we agree with the trial court that “[t]here is no evidence in this
[case] that [the government] similarly targeted individuals of a
specific social economic population.” As the trial court noted, the
informant was a roommate of Williamson’s brother. Thus, there is
no evidence that the officers or the informant found Williamson by


                                   8
                       STATE v. WILLIAMSON
                         Opinion of the Court

“trolling for targets” as was the case in Black, 733 F.3d at 303. To the
extent Williamson was recruited, he was recruited by his brother,
who introduced him to the officers at the second meeting.

¶17          We next consider the six factors Black identified “as
relevant to whether the government’s conduct was outrageous.” Id.
The factors “do not constitute a formalistic checklist, but help focus
our analysis of the totality of circumstances.” Id. at 304.

A. Known Criminal Characteristics and Individualized Suspicion.

¶18          Here, regarding the first two factors, the officers neither
had knowledge of Williamson’s criminal background, nor did they
suspect him of being involved in home invasion robberies before
conducting their undercover investigation. But, even though the
officers lacked any direct knowledge or suspicion of Williamson,
they initiated their sting operation only after the informant told
them “there was a home invasion crew lined up to go to work.”

¶19          Thus, unlike the situation in Black, the officers in this
case did not “recruit [the defendants] from a more generalized
population.” 733 F.3d at 307. Rather, they “focused on a category of
persons [they] had reason to believe were involved in the type of
illegal conduct being investigated.” Id. at 304. For example, in
United States v. Garza-Juarez, the government initiated an undercover
investigation after an undercover agent received a tip that an
unidentified Hispanic male had illegally sold an assault-type firearm
at a swap meet. 992 F.2d 896, 899 (9th Cir. 1993). The agent went to
the swap meet looking for Hispanic males who were selling guns
and lured the defendant into a sale of illegal weapons and
suppressors when it appeared he was selling more firearms than
would be expected of someone selling a “personal collection.” Id. at
899-900. On appeal, the court affirmed the defendant’s convictions,
rejecting his argument that the “government’s outrageous conduct
consisted of targeting him for an investigation without any reason to
suspect he was engaged in illegal conduct.” Id. at 904. The court
relied on United States v. Luttrell, 923 F.2d 764, 764 (9th Cir. 1991), in
which it held due process does not require reasonable suspicion of a
particular individual before the government conducts an


                                    9
                      STATE v. WILLIAMSON
                        Opinion of the Court

investigation. Garza-Juarez, 992 F.2d at 904. We conclude the first
two factors do not support a claim of outrageous conduct.

B. Government’s Role in Creating and Encouraging the Crimes.

¶20           The third factor—the government’s role in creating the
crimes of conviction—focuses on whether the “government
approached the defendant initially or the defendant approached a
government agent, and whether the government proposed the
criminal enterprise or merely attached itself to one that was already
established and ongoing.” Black, 733 F.3d at 305. In this case, it is
undisputed that the officers initiated the contact with the defendants
by asking the informant to set up a meeting. However, it was
Williamson’s brother who recruited Williamson to participate in the
plan, not the officers or the informant. See id. at 307. Indeed,
Williamson acknowledges the informant “never spoke with [him]
about doing a home invasion.” Although Williamson claims the
officers “told Chris Williamson to get a crew together,” they did not
tell him whom to recruit.

¶21            We do agree with Williamson, however, that the
fictitious robbery of a drug stash house originated entirely with the
officers. But again, this is mitigated by the information they had
received from the informant that “there was a home invasion crew
lined up to go to work.” Additionally, although “the government
created the proposed crime, initiated contact with the defendants[,]
. . . and set the bait,” Williamson told the officers he had committed
other home invasion robberies in the past. Just as the court did in
Black, we find it significant that Williamson’s statement to the
officers was “recorded on tape.” Id. at 307 (defendant told officers
he “had engaged in similar criminal activity in the past, in [a]
conversation[] that w[as] recorded on tape.”). Williamson claims
“there is no evidence that [he] actually committed a previous home
invasion.” To the extent he suggests the officers had a duty to verify
his statement, we reject this argument. Cf. State v. Lacey, 143 Ariz.
507, 511-12, 694 P.2d 795, 799-800 (App. 1984) (informant’s testimony
that defendant admitted engaging in prior narcotics transactions
admissible without additional proof; defense of entrapment puts
predisposition in issue). The evidence established that Williamson


                                 10
                      STATE v. WILLIAMSON
                        Opinion of the Court

was “eager to commit the fictional stash house robbery, and [he]
joined the conspiracy without any . . . inducement or pressure from
the government.” Black, 733 F.3d at 307.

¶22           This brings us to the fourth Black factor, which examines
“[t]he extent to which the government encouraged a defendant to
participate in the charged conduct[,] . . . with mere encouragement
being of a lesser concern than pressure or coercion.” Id. at 308. In
this case, there is no evidence that the officers encouraged or coerced
Williamson to commit the offenses. Indeed, the officers told the
defendants on numerous occasions they could “walk away” from
the plan at any time. Williamson concedes there is “no indication
that the [officers or the informant] threatened or otherwise coerced
[him] to enter into the conspiracy” but he contends “the economic
coercion inherent in this case should be considered.” He argues the
officers “targeted people who are unemployed and have distorted
moral compasses” and promised him more money than he had seen
in his life.

¶23           As part of the “back story,” the officers told the
defendants there were as many as forty kilograms of cocaine at the
stash house with an approximate value of $19,000 per kilogram. But
promising the defendants a considerable profit does not rise to the
level of outrageous conduct. See, e.g., United States v. Emmert, 829
F.2d 805, 811-12 (9th Cir. 1987) (informant’s offer of $200,000
“finder’s fee” to college student in return for supplying cocaine did
not constitute outrageous conduct); United States v. Martinez, 749
F.2d 601, 603-04, 605 (10th Cir. 1984) (not outrageous to offer food
stamps to poverty-level defendant at forty percent of face value).
Moreover, the defendants set their own price when the officers
asked what they expected as payment for the home invasion. We
therefore reject Williamson’s “economic coercion” argument.
“[C]oercion of any type must be particularly egregious before it will
sustain an outrageous conduct defense.” Mosley, 965 F.2d at 912. In
State v. Walker, this court stated “investigatory conduct violates a
defendant’s due process rights only when it approaches ‘coercion,
violence, or brutality to the person.’” 185 Ariz. 228, 239, 914 P.2d
1320, 1331 (App. 1995), quoting Irvine v. California, 347 U.S. 128, 133
(1954) (alteration in Walker).


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                      STATE v. WILLIAMSON
                        Opinion of the Court

C. Nature of Government’s Participation, Nature of Crimes, and
Necessity for Government’s Actions.

¶24          The fifth and sixth factors address the extent to which
the government participated in the offenses and the need for the
particular “investigative technique” given the nature of the crimes
being investigated. Black, 733 F.3d at 308-09. Here, the officers
provided the “back story” but, contrary to Williamson’s argument,
they did not provide “the directions about how to perform the
robbery.” The officers also provided guns, ballistic vests, and a
vehicle to be used in the home invasion. However, the evidence
established that they provided the guns at Williamson’s request.
Verdugo also testified the officers provided the guns and vehicle for
safety reasons. The guns were altered so they could not fire, and the
vehicle had a remote engine kill switch to prevent the defendants
from driving away.

¶25          Williamson further argues the officers provided the
money that he and his brother used “to buy the supplies” for the
home invasion. The officers gave Williamson $60 to buy supplies,
but the evidence established they did so only after the defendants
requested money for that purpose. And contrary to Williamson’s
suggestion, the officers did not tell the defendants which supplies to
buy. When Williamson and the others were arrested at the staging
area for the home invasion, they had in their possession pepper
spray, knives, masks, rubber gloves, and plastic zip ties to be used
for restraints. We conclude the government’s participation in the
crimes does not rise to the level of outrageous conduct.

¶26          Finally, the sixth factor “consider[s] the need for the
investigative technique that was used in light of the challenges of
investigating and prosecuting the type of crime being investigated.”
Black, 733 F.3d at 309. We conclude the court’s findings in Black
concerning this factor are no less applicable in this case. “[S]tash
house robberies are largely unreported crimes that pose a great risk
of violence in residential communities.” Id. “The reverse sting tactic
was designed to avoid these risks to the public and law enforcement
officers by creating a controlled scenario that unfolds enough to
capture persons willing to commit such an armed robbery without


                                 12
                      STATE v. WILLIAMSON
                        Opinion of the Court

taking the final step of an actual home invasion.” Id. We therefore
agree with the trial court’s finding “under a totality of the
circumstances test” that the officers’ investigation in this case does
not constitute outrageous government conduct.

                         Motion for Mistrial

¶27           Williamson next argues the trial court abused its
discretion in denying his motion for a mistrial after a police officer
“testified to the ultimate issue of entrapment.” We review a trial
court’s denial of a motion for a mistrial for an abuse of discretion.
State v. Miller, 234 Ariz. 31, ¶ 23, 316 P.3d 1219, 1228 (2013).

¶28           During Verdugo’s direct examination, the prosecutor
played portions of the audio and video recordings of the officers’
meetings with Williamson and his co-conspirators. The prosecutor
periodically stopped the recording and asked Verdugo to explain to
the jury what they had just seen and heard. At one point, the
prosecutor asked Verdugo why it was important for undercover
officers to say repeatedly to the persons targeted in an investigation:
“[I]f you want to walk away, you can walk away.” Williamson
objected, arguing the question essentially called for a “legal
conclusion as to predisposition,” but the court overruled the
objection. The prosecutor then asked Verdugo: “Can you tell us, . . .
the opportunity to walk away, is that something you all are taught
to say in undercover training?” Verdugo responded:

            Yes. That’s something we’re trained to do.
            And the reason we do it is we try to get
            away from the entrapment issue, where we
            give them an opportunity to walk away
            and nothing would ever happen at that
            point. They would just simply walk away
            and we would not do anything with the
            case.

Williamson again objected and later moved for a mistrial, arguing
the testimony amounted to a “legal conclusion” because it “left the



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                       STATE v. WILLIAMSON
                         Opinion of the Court

impression” that when officers advise people they can walk away
“it’s not entrapment.” The court denied the motion.

¶29          A mistrial is one of the most dramatic remedies “and
should be granted only when it appears that justice will be thwarted
unless the jury is discharged and a new trial granted.” State v.
Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). In deciding
whether a mistrial is warranted, courts consider (1) whether the jury
has heard something it should not hear, and (2) the probability that
the jury was influenced by what it heard. State v. Laird, 186 Ariz.
203, 207, 920 P.2d 769, 773 (1996).

¶30          Williamson acknowledges that expert and lay witnesses
may give opinion testimony, even though it embraces an ultimate
issue of fact, when it is “‘helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.’” State v.
Doerr, 193 Ariz. 56, ¶ 26, 969 P.2d 1168, 1175 (1998), quoting Ariz. R.
Evid. 701 (lay witness); see also Ariz. R. Evid. 702 (expert witness).
But Williamson argues “neither lay witnesses nor expert witnesses
can testify regarding a defendant’s guilt or innocence.” He
maintains “Verdugo basically told the jury that [Williamson] was
guilty because, if he gives them the opportunity to walk-away, it is
not entrapment.” Citing Fuenning v. Superior Court, 139 Ariz. 590,
605, 680 P.2d 121, 136 (1983), Williamson contends Verdugo’s
statement is analogous to an officer in a DUI prosecution testifying
improperly that the defendant was impaired. We disagree.

¶31          Verdugo’s testimony “embraced” Williamson’s defense
of entrapment because it related to the issues of inducement and
predisposition. But his general testimony about why officers in
undercover investigations are trained to give persons the
opportunity to walk away did not mention Williamson, much less
constitute an opinion on his “guilt or innocence or tell[] the jury how
it should decide [his] case.” State v. King, 180 Ariz. 268, 280, 883 P.2d
1024, 1036 (1994); see, e.g., State v. Chappell, 225 Ariz. 229, ¶¶ 16, 18,
236 P.3d 1176, 1182-83 (2010) (testimony that drowning was
“horrifying experience” and a “10” on “scale of 1 to 10” not
improper opinion on ultimate issue whether crime committed in
especially cruel manner); Doerr, 193 Ariz. 56, ¶¶ 25, 26, 969 P.2d at


                                   14
                       STATE v. WILLIAMSON
                         Opinion of the Court

1175 (testimony that police officer believed defendant untruthful
during questioning on day of arrest did not constitute opinion on
witness’ credibility); State v. Keener, 110 Ariz. 462, 466, 520 P.2d 510,
514 (1974) (in possession for sale prosecution, officer’s testimony
drugs possessed for sale properly admitted). We thus find no error
in the trial court’s denial of the motion for a mistrial.

                   Request for Willits Instruction

¶32           Williamson contends the trial court erred by refusing
his request for a jury instruction pursuant to State v. Willits, 96 Ariz.
184, 191, 393 P.2d 274, 279 (1964). Williamson maintains he was
entitled to the instruction concerning Angulo’s deletion of text and
voice messages Angulo had received from the informant prior to the
officers’ initial contact with Williamson. We review the court’s
ruling for an abuse of discretion. See State v. Glissendorf, 235 Ariz.
147, ¶ 7, 329 P.3d 1049, 1052 (2014).

¶33          “[I]f the state fails to preserve evidence that is
potentially exonerating, the accused might be entitled to an
instruction informing the jury that it may draw an adverse inference
from the state’s action.” Id. ¶ 1, citing Willits, 96 Ariz. at 191, 393
P.2d at 279. “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).

¶34          Relying on Rule 15.4(b)(2), Ariz. R. Crim. P., the state
argues it “was under no obligation to preserve the messages
between Angulo and the confidential informant.” That subsection
provides that the state is not required to disclose the existence or the
identity of a non-testifying informant “where disclosure would
result in substantial risk to the informant or to the informant’s
operational effectiveness, provided the failure to disclose will not
infringe the constitutional rights of the accused.” Thus, under
Rule 15.4(b)(2), the state may refuse a defendant’s request to turn
over information about the existence or identity of an informant, but
the ultimate decision whether the state must disclose such


                                   15
                      STATE v. WILLIAMSON
                        Opinion of the Court

information rests with the trial court. And although the rule
addresses the state’s duty to disclose, it neither addresses nor
excuses the state’s failure to preserve evidence that meets the
“tendency to exonerate” standard when the court subsequently
orders disclosure of an informant’s existence or identity. In short,
although the state’s failure to preserve the messages may have been
innocent, it was not excused by the rule.2

¶35          In Glissendorf, our supreme court stated that giving a
Willits instruction as “[a] consequence for even innocent loss or
destruction is necessary both to deter such action and to ensure that
defendants do not bear the burden of the state’s actions.” 235 Ariz.
147, ¶ 13, 329 P.3d at 1053. The court pointed out that “the Willits
instruction takes into account the state’s explanation of the
destruction by permitting jurors to draw an adverse inference only if
they ‘find that any such explanation is inadequate.’” Id., quoting
State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std.
10 (2013). In this case, both the existence and the identity of the
informant were disclosed. Thus, the jury could have found the
state’s explanation for deleting the text and audio messages
inadequate.       We therefore address whether Williamson
demonstrated the destroyed evidence had a tendency to exonerate
him.

¶36        “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.” Id. ¶ 9. The defendant must


      2 In Glissendorf, the court stated “[t]he ‘failure to preserve
potentially useful’ evidence is not a denial of due process unless ‘a
criminal defendant can show bad faith on the part of the police.’”
235 Ariz. 147, ¶ 11, 329 P.3d at 1052-53, quoting Arizona v.
Youngblood, 488 U.S. 51, 58 (1988). Thus, “[t]he ‘tendency to
exonerate’ test is not the same as that for a violation of due process.”
Id. “[T]he test for a violation of due process depends on the
subjective intent of law enforcement, while the test for giving a
Willits instruction is explicitly intended to cover innocent
destruction.” Id.


                                  16
                       STATE v. WILLIAMSON
                         Opinion of the Court

“‘demonstrate that the lost evidence would have been material and
potentially useful to a defense theory supported by the evidence.’”
Id. ¶ 10, quoting State v. Glissendorf, 233 Ariz. 222, ¶ 17, 311 P.3d 244,
251 (App. 2013).

¶37          Williamson argues the messages were “material for
effective cross-examination of both [the informant] and Angulo” to
resolve the discrepancies between their testimony about “what [the
informant] told Angulo about the defendants,” “what promises
were made [by the officers] to [the informant],” whether the
informant approached Williamson and the others about “a home
invasion or a drug deal,” and “whether there was an existing home
invasion crew in place.”

¶38          First, although Angulo admitted deleting the text and
voice messages, there was no evidence suggesting any of the alleged
discrepancies were evident in those messages. Thus, it is speculative
whether the messages would have been helpful to Williamson’s
defense. See id. ¶ 9. Second, Williamson recognizes, given his
entrapment defense, that “the primary issue for the jury to decide
was [his] predisposition to commit the crime[s].” But, none of the
alleged discrepancies amounts to evidence that “the state induce[d]
an otherwise innocent person to commit a criminal act” through
Angulo’s actions or the informant’s. State v. Rocha-Rocha, 188 Ariz.
292, 295, 935 P.2d 870, 873 (App. 1996).

¶39          Neither the informant’s alleged description of the
offense as a “drug deal,” nor his alleged assertion that a home
invasion crew was not already in place, established that Williamson
was not predisposed to commit the offenses. See A.R.S. § 13-
206(B)(3) (to support defense of entrapment, defendant must prove
he was “not predisposed to commit the type of offense charged”).
During his initial meeting with the officers, Williamson readily
agreed to the plan and told the officers he had committed home
invasions in the past. We also fail to see how Williamson was
induced to commit the offenses by the informant’s alleged
description of the plan as a “drug deal,” by the information about
the defendants given to the officers by the informant, or by the
promises the officers made to the informant in exchange for that


                                   17
                       STATE v. WILLIAMSON
                         Opinion of the Court

information. Indeed, there is no evidence the informant “urged and
induced [Williamson] to commit the offense[s].” § 13-206(B)(3). The
informant left the initial meeting between the officers and Chris
Williamson after making introductions, so he did not participate in
any discussions about the home invasion. And in any event,
Williamson did not attend that initial meeting, and the informant
was not present during any of the subsequent meetings Williamson
did attend. Finally, there was no evidence that the informant and
Williamson had any communications outside of those meetings.
The trial court did not err in refusing the request for a Willits
instruction.

         Motions for Judgment of Acquittal and New Trial

¶40          Williamson argues the trial court erred in denying his
motion for a judgment of acquittal made under Rule 20, Ariz. R.
Crim. P., and his subsequent motion for a new trial, claiming “[t]he
evidence presented was insufficient to support the jury’s verdict . . .
because he proved his entrapment defense by clear and convincing
evidence.” We review de novo the court’s denial of the Rule 20
motion, State v. Tucker, 231 Ariz. 125, ¶ 27, 290 P.3d 1248, 1261 (App.
2012), and we review the court’s ruling on the motion for a new trial
for an abuse of discretion, State v. Davis, 226 Ariz. 97, ¶ 5, 244 P.3d
101, 103 (App. 2010). We will reverse a conviction “‘only if there is a
complete absence of substantial evidence to support the’” jury’s
verdict. State v. Ramsey, 211 Ariz. 529, ¶ 40, 124 P.3d 756, 769 (App.
2005), quoting State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113
(App. 1996). “Substantial evidence” is proof that reasonable people
could accept as sufficient to support a conclusion of guilt beyond a
reasonable doubt. State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188,
1191 (2011).

¶41          “It is an affirmative defense to a criminal charge that the
person was entrapped.” § 13-206(A). The entrapment defense “is
based on the public policy notion that legislatures ‘could not have
intended criminal punishment for a defendant who has committed
all the elements of a proscribed offense but was induced to commit
them by the Government.’” State v. Preston, 197 Ariz. 461, ¶ 5, 4 P.3d
1004, 1007 (App. 2000), quoting United States v. Russell, 411 U.S. 423,


                                   18
                      STATE v. WILLIAMSON
                        Opinion of the Court

435 (1973).      Thus, “[e]ntrapment does not exist where law
enforcement officers have merely afforded an opportunity for a
predisposed person to commit a crime.” State v. Gessler, 142 Ariz.
379, 382, 690 P.2d 98, 101 (App. 1984).

¶42          Like other affirmative defenses, the defense of
entrapment “is a matter of avoidance of culpability even if the State
proves the offense beyond a reasonable doubt.” State v. Farley, 199
Ariz. 542, ¶ 11, 19 P.3d 1258, 1260 (App. 2001). Therefore, to assert
an entrapment defense, a defendant must admit the substantial
elements of the charged offense, § 13-206(A), and must prove each of
the following by clear and convincing evidence: (1) the idea of
committing the offense originated with law enforcement officers or
their agents and not with the defendant; (2) officers or their agents
“urged and induced” the defendant to commit the offense; and,
(3) the defendant “was not predisposed to commit the type of
offense charged” before being urged and induced by the officers or
their agents to commit it, § 13-206(B).

¶43          The state concedes the idea for the home invasion
originated entirely with the officers. But the state argues Williamson
failed to establish that the officers “acted to induce an ‘otherwise
innocent person’ to commit the offenses” or that he was not
predisposed to commit the crimes.

¶44          Williamson maintains the evidence “established that the
officers lacked any knowledge of [his] alleged ‘criminal background
or propensity’ prior to the officers inventing the stash-house
scheme,” they did not suspect him of “being associated with home
invasions,” and the officers supplied “guns and ballistic vests.”
Williamson’s argument appears to focus primarily on what the
officers knew about his criminal history and their conduct in
planning and supplying weapons for the home invasion.

¶45          In State v. Kiser, 26 Ariz. App. 106, 110-11, 546 P.2d 831,
835-36 (1976), we noted “the question of whether a defendant was
induced to commit a crime against his natural inclinations must be
answered in part by examining what the officers actually did in the
particular case.” But we also stated “entrapment [is not] proved as a


                                  19
                      STATE v. WILLIAMSON
                        Opinion of the Court

matter of law solely by reference to the objective character of police
conduct.” Id. at 110, 546 P.2d at 835. “The guilt or innocence of a
criminal defendant should instead depend as far as possible on his
own conduct and intent.” Id. Here, there was ample evidence for
the jury to conclude that Williamson was not induced to commit the
charged offenses and, even if he was, that he was predisposed to
commit them. See § 13-206(B).

¶46          Angulo testified the informant told him he knew
someone, referring to Chris Williamson, who was willing to commit
a home invasion. Although, as Williamson points out, the informant
denied saying this, the jury heard the informant’s deposition
testimony and Angulo’s trial testimony, and it was the jury’s role to
weigh the evidence and resolve issues of credibility. See State v.
Parker, 231 Ariz. 391, ¶ 73, 296 P.3d 54, 71 (2013). As to the issue of
predisposition, the evidence established Williamson told the officers
he previously had committed home invasions. The evidence further
established that when the officers told Williamson and the others
they could walk away, “all of them [stated] that they[ we]re in.”
And although the officers supplied the guns, they did so at
Williamson’s request. He also told the officers he had a shotgun and
a cattle prod he intended to use. And, as we noted above, contrary
to Williamson’s argument, the officers did not supply all of the
materials to commit the offenses. When Williamson and the others
were arrested, they had in their possession pepper spray, knives,
masks, rubber gloves, and plastic zip ties to be used for restraints.

¶47          Whether we review the trial court’s rulings for abuse of
discretion, Davis, 226 Ariz. 97, ¶ 5, 244 P.3d at 103 (new trial), or de
novo, Tucker, 231 Ariz. 125, ¶ 27, 290 P.3d at 1261 (Rule 20 motion),
we find no error in the court’s denial of the Rule 20 motion and
motion for a new trial.

                Stipulation to Elements of Offenses

¶48         Williamson last contends the trial court erred in finding
he was required to “enter into a stipulation admitting all of the
elements of the offense[s]” to be entitled to a jury instruction on the
defense of entrapment. We review a court’s decisions on the


                                  20
                      STATE v. WILLIAMSON
                        Opinion of the Court

admission or exclusion of evidence for an abuse of discretion. State
v. Hensley, 142 Ariz. 598, 602, 691 P.2d 689, 693 (App. 1984).

¶49           Williamson acknowledges that under § 13-206(A), a
person claiming entrapment “must admit by the person’s testimony
or other evidence the substantial elements of the offense charged.”
But he maintains that because the statute requires only that a
defendant admit the elements by “testimony or other evidence,” the
trial court erred in requiring him to enter into a stipulation.

¶50           A stipulation constitutes “other evidence” under the
statute. Stipulations are agreements, admissions, or concessions
made by the parties in judicial proceedings concerning incidental
matters “‘for the purpose, ordinarily, of avoiding delay, trouble and
expense.’” State v. Virgo, 190 Ariz. 349, 353, 947 P.2d 923, 927 (App.
1997), quoting Harsh Bldg. Co. v. Bialac, 22 Ariz. App. 591, 593, 529
P.2d 1185, 1187 (1975). In criminal proceedings, stipulations do not
relieve the state of its burden of proving each element of an offense
beyond a reasonable doubt. State v. Carreon, 210 Ariz. 54, ¶¶ 46-47,
107 P.3d 900, 910 (2005). Thus, stipulations are afforded no greater
weight or believability than any other evidence admitted at trial.
“Although stipulations may bind the parties and relieve them of the
burden of establishing the stipulated facts, stipulations do not bind
the jury, and jurors may accept or reject them.” State v. Allen, 223
Ariz. 125, ¶ 11, 220 P.3d 245, 247 (2009). Here, nothing in the record
suggests the trial court instructed the jury, either through the
stipulation or otherwise, that the state was relieved of its burden of
proving each element of the offenses. See State v. Preston, 197 Ariz.
461, ¶ 12, 4 P.3d 1004, 1009 (App. 2000).

¶51         In State v. Nilsen, 134 Ariz. 431, 657 P.2d 419 (1983), our
supreme court discussed the various methods by which a defendant
can admit the elements of an offense when asserting an entrapment
defense. The court stated a defendant “need not take the stand in
order to assert the defense of entrapment.” Id. at 432, 657 P.2d at
420. However, the “admission must be made in some affirmative
manner and cannot be assumed from a defendant’s silence.” Id.
Contrary to Williamson’s argument, the court stated that a
defendant may “stipulate to the admission” or “have his admission


                                  21
                      STATE v. WILLIAMSON
                        Opinion of the Court

of the elements read into evidence.” Id., citing State v. Mendoza, 109
Ariz. 445, 447, 511 P.2d 627, 629 (1973). We conclude the court did
not abuse its discretion in requiring Williamson to admit the
elements of the offenses by stipulation.

                            Disposition

¶52          For all of the foregoing reasons, we affirm Williamson’s
convictions and sentences.




                                 22
