THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
NORRIS, Judge.
¶1 Bryan Keith Kemp timely appeals his convictions and sentences for one count of disorderly conduct and two counts of aggravated assault. He argues the superior court abused its discretion by refusing to give the jury a Willits instruction when the State allegedly failed to preserve a surveillance video from the night of his offenses. For the reasons discussed below, we disagree and affirm his convictions and sentences.
¶2 An instruction pursuant to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), "would have instructed the jury that if it found that the state had lost or destroyed evidence whose content or quality was in issue, it [could] infer that the true fact [was] against the state's interest." State v. Bolton, 182 Ariz. 290, 308, 896 P.2d 830, 848 (1995) (citations omitted). "To be entitled to a Willits instruction, a defendant must prove: (1) that the state failed to preserve material evidence that was accessible and might tend to exonerate him, and (2) resulting prejudice." State v. Fulminante, 193 Ariz. 485, 503, ¶ 62, 975 P.2d 75, 93 (1999) (citation omitted).
¶3 Here, Kemp's convictions arose out of his conduct on and off a Phoenix city bus.1 The bus driver testified that after Kemp boarded the bus, Kemp began calling him offensive names and threatening him. The driver called his dispatcher, police responded and removed Kemp from the bus. A patrol officer testified that as he walked Kemp to his patrol car, Kemp kicked him in the thigh and struggled with him on the ground. Kemp injured his head during the struggle, and officers took him to a nearby hospital. A second patrol officer testified that as he escorted Kemp from the hospital after he was treated, Kemp kicked him in the shin. Disputing this testimony, Kemp testified he never threatened the driver or kicked the officers.
¶4 Before trial, Kemp's counsel requested a Willits instruction, arguing police had lost a surveillance video from the bus.2 The superior court stated it would consider the loss of the video in deciding the disorderly conduct charge, which the parties had tried to the bench. The court refused, however, to instruct the jury on Willits, finding the video would not have captured anything "of any import" to the assault charges the parties had tried to the jury, because those charges were based on Kemp's conduct outside the bus.
¶5 On appeal, Kemp argues he was entitled to a Willits instruction because his "defense was a polar opposite from the testimony of the police and of the bus driver," and surveillance from the bus would have supported his version of the events. The problem with Kemp's argument, however, is that an accused is entitled to a Willits instruction only when the State has lost or destroyed accessible, material evidence. Fulminante, 193 Ariz. at 503, ¶ 62, 975 P.2d at 93 (citation omitted). Here, Kemp failed to show there was a missing videotape that actually recorded any of his conduct.
¶6 The responding police sergeant testified he asked police assistants to download the surveillance, but they "had some kind of issues with the recorder" and "couldn't get it to work properly." Consistent with this testimony, one police assistant testified that when he entered the bus,
[He] notice[d] when [he] pulled the DVR out, the lights were not on, so [he] pulled the DVR from the bus out and [he] took the spare DVR that [he] brought to the bus and [he] put it in. When [he] put that [spare] DVR in, [he] could not get the lights to come on on the bus.
There's an indicator panel that [told] the bus driver the DVR [was] in the docking station and [was] working, and [he] could not get those lights to come on.
On cross-examination, he reiterated, "the lights that normally are on, telling me that the DVR is running and operating, were not on when I pulled the DVR out of the docking station." A third officer testified, in his experience, "when the lights aren't on, the video isn't working. . . . In fact, of all the videos [he] pulled on all the buses . . . [he] would say maybe 50 percent of the boxes even were operable." Kemp failed to present any evidence disputing this testimony and thus failed to show any surveillance footage was "accessible." Accordingly, the superior court did not abuse its discretion in denying his request for a Willits instruction. See Fulminante, 193 Ariz. at 503, ¶ 62, 975 P.2d at 93 (citation omitted) (appellate court reviews refusal to give Willits instruction for abuse of discretion).
¶7 For the foregoing reasons, we affirm Kemp's convictions and sentences.
DIANE M. JOHNSEN, JON W. THOMPSON, Judges, concurring.
