State v. Bermudez ( 2014 )


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  •                                NOTICE: NOT FOR PUBLICATION.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
    4
    

Document Info

Docket Number: 1 CA-CR 13-0679

Filed Date: 9/25/2014

Precedential Status: Non-Precedential

Modified Date: 10/30/2014