State v. Martell

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ALLEN JOSUE MARTELL, Appellant.

No. 1 CA-CR 24-0308
FILED 10-22-2025

Appeal from the Superior Court in Maricopa County
No. CR2022-006085-001
The Honorable Laura Johnson Giaquinto, Commissioner

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones, Phillip A. Tomas
Counsel for Appellee

The Susser Law Firm, PLLC, Chandler
By Adam M. Susser
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Veronika Fabian joined.

F O S T E R, Judge:

¶1 Defendant Allen Josue Martell appeals his convictions and
sentences for aggravated driving under the influence (“DUI”), class four
felonies. Martell argues the court erred by declining to instruct the jury on
a Willits instruction and that there was insufficient evidence to sustain a
conviction for impairment by Tetrahydrocannabinol (“THC”), the primary
psychoactive component of marijuana. For the reasons below, this Court
affirms.

FACTS AND PROCEDURAL HISTORY

¶2 This Court “view[s] the evidence in the light most favorable
to sustaining the jury’s verdict and resolve[s] all reasonable inferences
against the defendant.” State v. Fierro, 254 Ariz. 35, 38, ¶ 2 (2022) (citation
omitted).

¶3 Martell’s convictions stem from suspicion of DUI when the
vehicle he was driving collided with metal cable barriers in the median of a
highway. A trooper, certified as a Drug Recognition Expert, arrived at the
scene and “observed a smell of light odor of burnt marijuana . . . emanating
from . . . the passenger compartment.” Martell informed the trooper he
smoked three blunts of marijuana the previous night. The trooper
conducted a roadside DUI investigation and Martell consented to field
sobriety testing. After the four field sobriety tests indicated impairment, the
trooper arrested Martell for DUI. Following Martell’s arrest, the trooper
found pieces of a burnt cigarette in the vehicle’s cup holder and later
testified that it smelled of marijuana. Martell’s vehicle was impounded. A
subsequent blood draw revealed 9.7 nanograms per milliliter (“ng/ml”) of
THC in Martell’s system. No one retrieved the vehicle from the impound
lot and the lot owner eventually disposed of it.

¶4 The State charged Martell with two counts of aggravated DUI.
Count 1 alleged driving with a suspended license while impaired to the
slightest degree and Count 2 alleged driving while having a previous

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conviction within 84 months of this incident. See A.R.S. §§ 28-1383(A)(1),
(2), -1381(A)(1).

¶5 Martell moved to dismiss. He argued that (1) the State failed
to preserve the vehicle and (2) the State did so in bad faith. Martell reasoned
that at the time of the incident, he informed law enforcement that the
vehicle he drove had a mechanical issue, specifically an alignment problem.
Because the State was aware of the mechanical issue, Martell argued, the
State had a duty to investigate and preserve evidence that was exculpatory
or exonerated him. Alternatively, Martell argued the court should provide
a Willits instruction, which permits the jury to draw “an inference
unfavorable to the prosecution” when the State destroys evidence. State v.
Willits, 96 Ariz. 184, 191 (1964).

¶6 After briefing on the motion, the court held a hearing and
denied Martell’s motion to dismiss and the Willits instruction request. The
court found that Martell failed to show “a real likelihood that the evidence
would have had evidentiary value.” The court also found the State did not
act in bad faith, which Martell does not challenge on appeal.

¶7 A four-day jury trial proceeded and the parties stipulated that
(1) Martell’s driver’s license was revoked at the time of the incident; (2)
Martell “knew or should have known his driver’s license [was] revoked” at
the time of the incident; (3) Martell was “convicted twice for driving or
actual physical control while under the influence of . . . drugs”; and (4) the
incident occurred within 84 months from a previous conviction of a DUI.
Regardless, Martell and his fiancé, the owner of the vehicle, testified about
the vehicle’s mechanical issues. Martell’s fiancé testified she owned the
vehicle for about two weeks and also experienced a shaky steering wheel.

¶8 At the close of the State’s evidence, Martell moved for a
directed verdict. Martell’s counsel argued that the State did not prove the
THC in Martell’s system caused impairment because the various field
sobriety tests “are not validated for marijuana” and because no trooper was
present to observe Martell’s behavior before THC was in his system. The
court denied the motion, finding the State presented substantial evidence
and the jury was instructed on Martell’s charges. The jury found Martell
guilty on two counts of aggravated DUI by intoxicating drugs.

¶9 Following trial, Martell moved for a new trial, which the court
denied. The court sentenced Martell to a presumptive 10 years’ prison term
with 99 days of presentence incarceration credit. The court ordered both
counts to run concurrently. Martell sought reconsideration of the denial of

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a new trial and at sentencing, the court denied that motion. Martell
appealed and this Court has jurisdiction. Ariz. Const. art. VI, § 9; A.R.S. §§
12-120.21(A)(1), 13-4031, -4033(A).

DISCUSSION

I. The denial of a Willits instruction was proper.

¶10 Appellate Courts review rulings regarding a Willits
instruction for an abuse of discretion. State v. Hernandez, 250 Ariz. 28, 31, ¶
9 (2020). A defendant is entitled to a Willits instruction when the State “loses
or destroys evidence that would have been useful to the defense.” State v.
Glissendorf, 235 Ariz. 147, 149, ¶ 7 (2014). This rule is based “on the notion
that the destruction is motivated by a desire to conceal the truth . . . [or] an
unwillingness to make the necessary effort to preserve [evidence].” Id.
(quoting Willits, 96 Ariz. at 191). Because a Willits instruction “ordinarily
concerns physical evidence,” the inference may be given “if the state
permits evidence within its control to be destroyed.” State v. Broughton, 156
Ariz. 394, 399 (1988).

¶11 Entitlement to a Willits instruction requires the defendant to
prove (1) the State’s failure to preserve obviously material and reasonably
accessible evidence which could potentially exonerate him and (2) the
failure resulted in prejudice. Hernandez, 250 Ariz. at 31, ¶ 10 (citing
Glissendorf, 235 Ariz. at 150, ¶ 8). State v. Geotis, 187 Ariz. 521, 525 (App.
1996), addressed the first element a defendant needs to show for a Willits
instruction. In that case, the court denied a Willits instruction in relation to
the State not preserving evidence left in a car it impounded. In declining to
find an abuse of discretion, this Court held “there was no showing that [the
items] were . . . inaccessible to the defendant for his later use” since the
owner of the vehicle could have retrieved them. Id.

¶12 Here, the facts support the same outcome. The court noted
that because there was no hold on the vehicle, Martell’s fiancé, the owner
of the vehicle, could have retrieved it. See id. Thus, the evidence was
reasonably accessible to Martell, and he cannot establish the “failure to
preserve” element of the Willits instruction.

¶13 The court did not abuse its discretion in declining to provide
a Willits instruction. Therefore, this Court need not consider prejudice. See
Hernandez, 250 Ariz. at 34, ¶ 22.

II. The State established sufficient evidence to prove impairment.

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¶14 Martell next argues there was insufficient evidence to convict
him of impairment by THC. Martell contends the State failed to establish “a
sufficient nexus between THC and the observed—presumably
impaired . . . behaviors.”

¶15 Sufficiency of the evidence is a question of law this Court
reviews de novo. State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). This Court
considers the evidence presented at trial to determine whether “any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Fuentes, 247 Ariz. 516, 526, ¶ 36 (App.
2019). Reversal is appropriate when no probative evidence supports the
conviction. Id. Probative evidence “is evidence that ‘reasonable persons
could accept as sufficient to support a guilty verdict beyond a reasonable
doubt.’” Pena, 235 Ariz. at 279, ¶ 5 (quoting State v. Hausner, 230 Ariz. 60,
75, ¶ 50 (2012)).

¶16 State law makes it unlawful to operate a vehicle with a
suspended license and under the influence of drugs “if the person is
impaired to the slightest degree.” A.R.S. §§ 28-1381(A)(1), -1383(A)(1).

¶17 Here, probative evidence supported Martell’s conviction that
he was impaired to the slightest degree while under the influence of THC.
The State’s forensic toxicologist testified possible indicators of THC
impairment including (1) distorted perception of time; (2) loss of short-term
memory; (3) inability to think clearly; (4) eyelid tremors; (5) body tremors;
and (6) weakened ability to divide attention. The defense’s toxicologist
expert affirmed various indicators of THC impairment including divided
attention, impaired cognitive function, and body and eyelid tremors.
Martell exhibited indicators of impairment when he underwent four field
sobriety tests including lack of balance, leg tremors and lack of cognitive
ability. The forensic toxicologists’ testimonies supported that Martell
exhibited indicators of impairment during his field sobriety tests. Thus,
sufficient evidence established Martell was impaired to the slightest degree.

¶18 Next, while not conclusive of impairment, the THC in
Martell’s system indicated impairment. Both parties’ experts testified that
no presumptive impairment threshold existed for THC but testified that
recent consumption may cause reasonable impairment to some degree. See
Dobson v. McClennen, 238 Ariz. 389, 391, ¶ 10 (2015) (unlike alcohol, there is
no general threshold of THC concentration that establishes impairment);
State v. Fraser, 199 Wash.2d 465, 480, ¶ 32 (2022) (“While there may not be a
universal THC blood level that is akin to the 0.08 BAC for alcohol
impairment, the studies do show that THC levels above 5.00 ng/mL are

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indicative of recent consumption in most users.”). The State’s toxicologist
testified that scientific literature points to significant signs of impairment
between 5-10 ng/ml in a person’s system. On cross-examination, the State’s
toxicologist testified that THC is detectable in the blood around two to three
hours after consumption. The defense’s expert testified that a chronic user
may also exhibit a THC baseline between 5-10 ng/ml.

¶19 Lastly, the State presented evidence of an odor of marijuana
from the vehicle, pieces of a burnt marijuana cigarette in the vehicle’s cup
holder and Martell admitting he smoked three blunts the previous night.
See State v. Delgado, 2 CA-CR 2023-0222, 2024 WL 2270611, at *2, ¶ 6 (Ariz.
App. May 20, 2024) (mem. decision) (sufficient evidence supported a DUI
conviction when the defendant exhibited signs of impairment, such as poor
driving, odor of marijuana, tremors, THC in blood and admission of recent
marijuana use).

¶20 Although Martell argues that the State’s evidence required
the jury to “make a leap” that its evidence could not show, it is the jury’s
responsibility to weigh the credibility of expert testimony and other
evidence admitted at trial. This Court will not disturb a jury’s or court’s
findings if probative evidence supports the verdict. See Fuentes, 247 Ariz. at
526, ¶ 38; see also Delgado, 2024 WL 2270611, at *2, ¶ 6 (court declined to
reweigh defendant’s request to review arguably inconclusive evidence); see
also State v. Romberger, 2 CA-CR 2023-0066, 2024 WL 2842751, at *6, ¶ 32
(Ariz. App. June 4, 2024) (mem. decision) (to the extent that evidence was
conflicting, that did not render it insufficient and are matters for the jury).
The State’s evidence viewed in its totality was sufficient for a reasonable
trier of fact to find Martell was impaired to the slightest degree under § 28-
1381(A)(1).

CONCLUSION

¶21 For the reasons above, this Court affirms Martell’s convictions
and sentences.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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