STATE v. KEMP
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NOTICE: 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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. BRYAN KEITH KEMP, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0212 DIVISION ONE FILED: 10/04/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-112274-001 DT The Honorable Lisa Ann VandenBerg, Commissioner AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Section Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, 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 responded him. and The removed driver Kemp called from 1 the his bus. dispatcher, A patrol police officer We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Kemp. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 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. escorted kicked Kemp him A second patrol officer testified that as he from in the the hospital shin. after Disputing he was this treated, Kemp 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. 2 A police assistant testified he removed a DVR from the bus, never watched it, kept it in his locker overnight, then gave it to the second patrol officer. The officer, however, testified: I don t remember either way. I don t remember receiving it. I don t remember not receiving it. I just don t remember. In any event, by the time of trial, the State could not produce the DVR. 3 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, Ariz. at 503, ¶ 62, 975 P.2d at 93 (citation omitted). 193 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 4 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. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ DIANE M. JOHNSEN, Judge /s/ JON W. THOMPSON, Judge 5
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