State v. Dean

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CLARENCE JAMES DEAN, Appellant.

No. 1 CA-CR 21-0259
FILED 4-28-2022

Appeal from the Superior Court in Maricopa County
No. CR2019-124292-001
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Diane L. Hunt
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Aaron J. Moskowitz
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.

B A I L E Y, Judge:

¶1 Clarence James Dean Jr. appeals his convictions for
aggravated driving under the influence (“DUI”) based on the superior
court’s refusal to give an adverse-inference instruction pursuant to State v.
Willits, 96 Ariz. 184 (1964). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Dean’s Dodge Charger rear-ended another vehicle, launching
it into a wall. A driver who witnessed the collision followed the Charger as
it drove to a parking lot a block away. The witness saw Dean exit the driver
door to inspect the Charger for damage, and he asked Dean whether he was
going back to check on the person he hit. Dean said yes. According to the
witness, the Charger was never out of his sight from the time of the collision
to when Dean emerged from the vehicle.

¶3 Dean got back into the Charger but then drove somewhat past
the collision site, at which point a police officer pulled him over. Officers
observed that Dean’s eyes were watery and bloodshot, and they smelled
alcohol on him. Dean submitted to field sobriety tests, which revealed signs
of impairment. Blood drawn from Dean about 70 minutes after the collision
showed a blood alcohol concentration of 0.164 percent. Dean’s driver’s
license was both suspended and revoked. He admitted to an officer that he
rear-ended the other vehicle and was alone in the Charger.

¶4 The State charged Dean with two counts of aggravated DUI
(impaired to the slightest degree and blood alcohol over 0.08 percent with
a suspended or revoked license) and one count of leaving the scene of an
accident resulting in vehicle damage. At trial, Dean testified that a friend
of his was driving the Charger at the time of the collision; the friend took
off running without explanation after driving the Charger to the parking
lot on the next block; and Dean then drove the Charger back to the scene of
the accident. Dean acknowledged on cross-examination that his testimony

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conflicted with what he told police after the collision. The friend who Dean
claimed was driving did not testify at trial.

¶5 A jury found Dean guilty of both aggravated DUI charges but
found him not guilty of leaving the scene of an accident. The superior court
sentenced him to concurrent terms of four months’ imprisonment to be
followed by three years of supervised probation.

¶6 We have jurisdiction over Dean’s timely appeal under Article
6, Section 9, of the Arizona Constitution and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

DISCUSSION

¶7 The witness who followed the Charger after the collision was
interviewed by a police officer who stated in his report that he had activated
his body camera recorder. A log showing all body camera recordings
uploaded in connection with the incident did not include a recording from
the officer, however. The officer moved out of state and did not testify at
Dean’s trial.

¶8 If the State “fails to preserve obviously material and
reasonably accessible evidence that could have had a tendency to exonerate
the accused and prejudice results, the trial court must provide the jury a
Willits instruction.” State v. Hernandez, 250 Ariz. 28, 30, ¶ 1 (2020); see also
Willits, 96 Ariz. at 191; State v. Glissendorf, 235 Ariz. 147, 150, ¶ 7 (2014). The
instruction allows jurors to “draw an inference unfavorable to the State,
which in itself may create a reasonable doubt as to the defendant’s guilt.”
Hernandez, 250 Ariz. at 30, ¶ 1; see also Rev. Ariz. Jury Instr. (“RAJI”) Stand.
Crim. 42 (4th ed. 2016). “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.” Glissendorf, 235 Ariz. at 150,
¶ 8 (citations omitted).

¶9 Dean requested a Willits instruction pertaining to the officer’s
body camera recording. He argued that evidence showed the State lost or
destroyed the recording and its absence impaired Dean’s defense by
preventing him from using the recording to impeach the witness’s
testimony. The State opposed giving the instruction, asserting that (1) its
investigation of the issue suggested the officer had not, in fact, activated his
body camera and (2) even if he had, Dean suffered no prejudice from the
missing recording because he was able to cross-examine the witness at trial.

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¶10 The superior court denied Dean’s request for a Willits
instruction—which Dean now argues constitutes reversible error. We
review the court’s ruling for an abuse of discretion, Glissendorf, 235 Ariz. at
150, ¶ 7, and will not upset its decision “if the result was legally correct for
any reason,” State v. Perez, 141 Ariz. 459, 464 (1984) (citations omitted).

¶11 Assuming the State did, in fact, lose or destroy a recording of
a law enforcement interview with the witness, Dean was not entitled to a
Willits instruction because the value of the recording to the defense was
speculative. See Glissendorf, 235 Ariz. at 150, ¶ 9 (“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.” (citations
omitted)). Dean argues the missing recording might have reinforced his
testimony by providing evidence that the witness reported seeing a second
person in the parking lot with Dean. The argument is hypothetical on this
record. The witness’s trial testimony was consistent with his 911 call, the
timing of events—which showed that Dean returned to the scene of the
collision within a couple of minutes after it occurred—and Dean’s own
statements on the night of the collision. Defense counsel did not elicit any
testimony from the witness suggesting that his account at trial varied in any
respect from statements the witness made during his interview with law
enforcement. Dean’s wishful thinking, without more, does not establish
that the missing recording could have had a tendency to exonerate him. See
Perez, 141 Ariz. at 464 (finding no prejudice from the State’s destruction of
a videotape capturing the charged robbery where there was no evidence to
suggest that the videotape would have provided material that could be
used to impeach the victim’s testimony).

¶12 Even if the superior court’s refusal to give a Willits instruction
were erroneous, reversal would not be warranted because the State has
established “beyond a reasonable doubt that the error did not contribute to
or affect the verdict[s].” State v. Henderson, 210 Ariz. 561, 567, ¶ 18 (2005).
Dean’s DUI convictions were supported by overwhelming evidence as to
which the witness’s testimony was unnecessary and largely irrelevant.
Dean admitted he drove the Charger back to the collision site, and the State
correctly informed jurors that his admission was enough to establish the
driving element of the DUI charges—even if someone else were driving at
the time of the collision. See A.R.S. § 28-1381(A)(1)-(2) (“It is unlawful for a
person to drive or be in actual physical control of a vehicle . . . [i]f the person is
impaired to the slightest degree [or] if the person has an alcohol
concentration of 0.08 or more . . . .” (emphasis added)). Dean’s blood
alcohol level, performance on field sobriety tests, and motor vehicle records

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provided strong evidence of his impaired state and lack of a valid license.
On this record, the absence of a Willits instruction was harmless.

CONCLUSION

¶13 Dean’s convictions and sentences are affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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