Opinion
No. 1 CA-CR 17-0260
03-29-2018
STATE OF ARIZONA, Appellee, v. RICKY GERALD SMITH, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Erika A. Arlington, Esq., PC, Flagstaff By Erika A. Arlington Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Mohave County
No. S8015CR201600318
The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Erika A. Arlington, Esq., PC, Flagstaff
By Erika A. Arlington
Counsel for Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Judge Kent E. Cattani joined.
PERKINS, Judge:
¶1 Ricky Gerald Smith appeals his theft and trafficking in stolen property convictions and sentences. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A local tire store regularly acquired and sold used brake rotors as part of its repair services. The tire store kept the rotors on pallets behind the store for later sale as scrap metal to a recycling facility. The store's owner also kept several out-of-use water heaters next to the rotors.
¶3 According to Smith's testimony, he met with a man wearing a shirt with the tire store's logo, who offered to trade Smith the used rotors in exchange for some lights. Smith alleges he agreed to the trade, was shown where the rotors were kept, and returned to the store that night to collect the rotors. On arriving at the store, Smith loaded the rotors and heaters into his truck. The following morning, the store owner noticed the missing items and reported the theft to the Mohave County Sheriff's Department. A sheriff's deputy responded to the tire store to investigate. The deputy inspected the area where the items were kept, noticed a surveillance camera pointed at the area, reviewed the surveillance system's recordings from the previous night, and requested a copy of the video.
¶4 The owner also alerted a local recycling facility that someone might attempt to sell the stolen rotors and heaters. Later that morning, Smith sold the rotors and water heaters to the recycling facility. The facility's employees initially refused to purchase the items, informing Smith they had been reported stolen, but ultimately purchased them after receiving manager approval.
¶5 The tire store gave the deputy a copy of the surveillance footage a week after his request. The following week, the deputy attempted to view the footage and discovered the video was unplayable on the Sheriff's Department's systems. The deputy contacted the tire store and
requested another copy, but learned the footage had been recorded over and was no longer available.
¶6 The State charged Smith with the theft and trafficking of the used brake rotors and two hot water heaters.
¶7 At trial, though the surveillance video was unavailable, the deputy testified the surveillance footage showed a truck arriving behind the store and its driver loading the rotors and heaters onto the truck. Smith, in his testimony, alleged that a man wearing a shirt with the tire store's logo gave him the rotors in exchange for some lights. Smith further testified that: the rotors and heaters were next to and inside the dumpster; the pictures of the dumpster introduced at trial showed the dumpster in a different location than when he came to take the rotors; he had permission to remove the rotors and heaters; and the items were abandoned. Smith also testified that he believed taking the items was legal because they were abandoned by virtue of their location in or near the dumpster.
¶8 The jury found Smith guilty on one count of theft, a Class 1 misdemeanor, and one count of trafficking in stolen property, a Class 3 felony. The trial court sentenced Smith to 17 days' incarceration for theft with credit for time served, a two-year term of imprisonment for trafficking in stolen property, and three months' community service consecutive to the imprisonment. Smith timely appealed.
DISCUSSION
¶9 Smith's sole argument on appeal is that the trial court erred in denying his request for a jury instruction derived from State v. Willits, 96 Ariz. 184 (1964). We review a trial court's refusal to give a Willits instruction for abuse of discretion. State v. Murray, 184 Ariz. 9, 33 (1995). We view the facts in the light most favorable to sustaining the verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013). On appeal, we will affirm the trial court's ruling on any basis supported by the record. State v. Robinson, 153 Ariz. 191, 199 (1987).
¶10 To warrant a Willits instruction, a defendant must establish: (1) the State failed to preserve accessible material evidence that might tend to exonerate him; and (2) resulting prejudice. State v. Fulminante, 193 Ariz. 485, 503, ¶ 62 (1999); Murray, 184 Ariz. at 33. Here, the threshold question is whether the State failed to preserve the surveillance video.
¶11 Relying on State v. Perez, Smith argues the State failed to preserve evidence by failing to timely ensure it received a usable copy of
the surveillance footage. See State v. Perez, 141 Ariz. 459 (1984) (finding police inaction amounted to a failure to preserve by the State). In Perez, detectives watched a videotape of a store robbery a "couple days" before the store owner reused the tape, but never requested a copy of the footage. Id. at 461, 463. The Arizona Supreme Court noted the State could have secured possession of the tape by request or, if necessary, through a search warrant. Id. It held: "[W]here the state fails to act in a timely manner to ensure the preservation of evidence that is obviously material, and reasonably accessible, a defendant is entitled to a Willits instruction upon a showing that he or she was prejudiced thereby." Id. at 464.
¶12 Here, unlike in Perez, the deputy requested the surveillance footage the day the theft was reported. Though the deputy did not immediately review the copy of the tape he received, he could reasonably have believed he had preserved the video. Upon discovering the footage was unplayable on the Sheriff's Department's systems, the deputy promptly requested another copy of the video. By then, the surveillance video had been recorded over by the tire store.
¶13 The trial court found the State "did everything they could to obtain and preserve this evidence." Under these circumstances, the trial court did not abuse its discretion in denying Smith's request for a Willits instruction. Finally, we note that though the trial court denied Smith's requested jury instruction, nothing precluded Smith's counsel from arguing the substance of the instruction, that the destroyed video might support Smith's defense, to the jury.
CONCLUSION
¶14 For the foregoing reasons we affirm Smith's convictions and sentences.