State v. Reagor

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRAYLAND REAGOR, Appellant.

No. 1 CA-CR 25-0079
FILED 12-08-2025

Appeal from the Superior Court in Maricopa County
No. CR2022-122423-001
The Honorable Kevin B. Wein, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
 STATE v. REAGOR
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge David D. Weinzweig delivered the decision of the Court,
in which Presiding Judge Jennifer M. Perkins and Judge Cynthia J. Bailey
joined.

W E I N Z W E I G, Vice Chief Judge:

¶1 Brayland Reagor appeals his armed robbery conviction and
sentence, arguing the superior court should have instructed the jury on
theft as a lesser-included offense and provided a Willits1 instruction because
of missing video evidence. We affirm his conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts and inferences in the light most favorable
to sustaining the jury’s verdict. Gonzales v. City of Phoenix, 203 Ariz. 152,
153, ¶ 2 (2002).

¶3 Reagor entered a Famous Footwear store in June 2022 and
tried to steal a pair of shoes, hiding them in his pants. Ally and John
(pseudonyms), employees at the store, confronted Reagor and asked him to
leave. John took the shoes back from Reagor and they argued until Reagor
left the store.

¶4 Minutes later, Reagor returned to the store and said, “I got
something for you in my bag” before he pulled out and waved a knife. Ally
told John to “back up,” while Reagor grabbed a pair of red and white Vans
and exited the store. Ally called 911.

¶5 A police officer arrested Reagor near the store about 90
minutes later. Reagor had a knife in his pocket along with the stolen shoes.
Asked what happened, Reagor told police, “I only pulled the knife because
he touched me.”

1 A Willits instruction tells jurors that they may infer from the State’s
loss or destruction of material evidence that the evidence would have been
unfavorable to the State. State v. Willits, 96 Ariz. 184, 191 (1964); State v.
Fulminante, 193 Ariz. 485, 503, ¶ 62 (1999).

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 STATE v. REAGOR
Decision of the Court

¶6 Police requested the store’s security video two days after the
incident. The store sent three still photos but never sent the actual video.
The photos did not show Reagor holding a knife. Ally told police that
Reagor used a knife during the incident. The State charged Reagor with
armed robbery and aggravated assault.

¶7 A jury trial was held. Reagor never requested a jury
instruction on theft as a lesser-included offense. On the last day of trial,
Reagor requested a Willits instruction because the State failed to preserve
the store’s security footage. The superior court found the State failed to
preserve the video but denied the instruction, concluding Reagor had not
shown the video would likely exonerate him. Reagor emphasized the
missing video in his closing argument, along with the absence of a knife in
the photos. The jury convicted Reagor of armed robbery but acquitted him
of aggravated assault. The jury found the robbery “involved the use of a
deadly weapon or dangerous instrument.” The superior court enhanced
Reagor’s sentencing because of the prior felonies he admitted to. The court
sentenced him to 15.75 years.

¶8 Reagor successfully filed a delayed notice of appeal. We have
jurisdiction. A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A)(1).

DISCUSSION

¶9 Reagor argues the superior court erred by not providing a
jury instruction on its own accord for theft as a lesser-included offense of
armed robbery and by rejecting a Willits instruction.

I. Lesser-Included Offense Instruction.

¶10 Reagor argues the superior court erred by not providing a
theft jury instruction on its own accord as a lesser-included offense to
armed robbery. We review for fundamental error because Reagor did not
object at trial. See State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018). He must
show an error that is both fundamental and prejudicial. Id. at 142, ¶ 21.

¶11 We discern no error. Arizona law does not require trial court
judges to offer jury instructions for lesser-included offenses unless
requested. State v. Gipson, 229 Ariz. 484, 487, ¶ 15 (2012) (“[T]he trial judge
should withhold charging on lesser included offense[s] unless one of the
parties requests it.”) (citation modified). Reagor never requested a jury
instruction for theft at trial, so the court did not err.

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 STATE v. REAGOR
Decision of the Court

¶12 Even assuming error, Reagor has not shown prejudice
because the record has ample evidence to prove armed robbery, not mere
theft, including (1) Ally’s testimony that Reagor brandished a knife, (2)
Ally’s description of the incident to the 911 operator as it happened, (3)
police found a knife on Reagor shortly after the incident, and (4) Reagor
admitted he pulled the knife. No reasonable jury could have concluded
Reagor committed only theft because the differentiating element—use of a
deadly weapon—was proven beyond doubt.

II. Willits Instruction.

¶13 Reagor further argues the superior court should have given a
Willits instruction because the State did not preserve the store’s security
footage.

¶14 To obtain a Willits instruction, Reagor must prove: (1) the
State failed to preserve material evidence that could have exonerated him,
and (2) prejudice. State v. Glissendorf, 235 Ariz. 147, 150, ¶ 8 (2014). He must
show “a real likelihood that the evidence would have had evidentiary
value,” not mere speculation. Id. at ¶ 9.

¶15 Reagor has not shown the State failed to preserve material
evidence that could have exonerated him. Police never received the video
from Famous Footwear. And Reagor only speculates the video would have
shown no knife and assumes the store withheld the video from police
because it did not show a knife. Beyond that, the jury heard overwhelming
evidence that Reagor used a knife, including his own admission.

CONCLUSION

¶16 We affirm.

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

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