State v. Lopez ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHN AUSTIN LOPEZ, Appellant.
No. 1 CA-CR 19-0477
FILED 9-29-2020
Appeal from the Superior Court in Maricopa County
No. CR2015-145384-001
The Honorable Ronda R. Fisk, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Brian Coffman
Counsel for Appellee
The Law Office of Kyle T. Green, Tempe
By Kyle Green
Counsel for Appellant
STATE v. LOPEZ
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Kent E. Cattani joined.
B A I L E Y, Judge:
¶1 John Austin Lopez appeals his convictions and sentences for
discharge of a firearm at a structure, aggravated assault, and
endangerment. Lopez contends the superior court committed reversible
error by refusing to give an adverse-inference instruction pursuant to State
v. Willits, 96 Ariz. 184 (1964). Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Seventeen-year-old Lopez and his ex-girlfriend D.V. attended
a party at which D.V. and Lopez’s sister got into a physical fight. Lopez,
too, joined the scuffle and at some point brandished a gun. After the fight
ended, someone fired one or more gunshots, causing Lopez and D.V. to
each flee the party with their respective groups of friends and relatives.
¶3 D.V. drove back to her house with her cousin C.M., C.M.’s
boyfriend A.C., A.C.’s friend T.C., and D.V.’s neighbor A.A. Lopez and his
group also drove to D.V.’s house in a separate vehicle. When D.V. saw
them nearing the house, her stepfather retrieved a handgun and told
everyone to stay inside. D.V.’s stepfather and mother—who were standing
on the front porch—and A.C.—who was standing in the doorway—saw
Lopez and another man get out of their vehicle and walk up to the driveway
of D.V.’s house. After D.V.’s stepfather yelled something to the effect of
“hey, what are you doing; get away from my cars,” Lopez and/or the other
man began shooting. One of the bullets grazed A.C.’s arm. D.V.’s
stepfather then fired a shot from his weapon into the air, at which point
Lopez and the other man returned to their vehicle and drove away.
¶4 Law enforcement officers collected four shell casings from the
street outside D.V.’s house and one spent bullet from the porch area. The
shell casings all appeared to have come from the same firearm, but the
bullet was too badly damaged to be linked to any particular weapon.
¶5 The State tried Lopez on eleven counts relating to the
shooting at D.V.’s house: one count of discharging a firearm at a structure,
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Decision of the Court
three counts of aggravated assault pertaining to D.V.’s stepfather, mother,
and A.C., and seven counts of endangering people inside the house—D.V.,
A.A., C.M., T.C., and three other members of D.V.’s family who were
present that night.
¶6 At trial, Lopez defended against the charges on the theory
that only one person shot at D.V.’s house and he was not that person.
Lopez testified he left his gun in the car when he went to D.V.’s house and
that the gun—which was apparently disposed of before it could be collected
by law enforcement—was a .45 semiautomatic, which was incompatible
with the .38 caliber shell casings recovered at the scene.
¶7 Jurors found Lopez guilty as charged, and found various
aggravating circumstances proven. The verdicts do not make clear whether
jurors found Lopez guilty as a principal—i.e., a shooter himself—or as an
accomplice of the shooter.
¶8 The State also tried Lopez on three counts relating to events
at the party: two counts of aggravated assault and one count of unlawful
discharge of a firearm. Jurors found Lopez guilty of two counts of
disorderly conduct—lesser-included offenses of the aggravated assault
charges—and found him not guilty of unlawful discharge. Lopez does not
challenge these convictions on appeal.
¶9 The superior court sentenced Lopez to concurrent prison
terms, the longest of which was fifteen years for his conviction of
discharging a firearm at a structure. Lopez timely appealed, and this court
has jurisdiction under Article 6, Section 9, of the Arizona Constitution and
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
¶10 Lopez contends the superior court committed reversible error
by denying his request for a Willits instruction, which allows jurors to draw
an adverse inference against the State if they find it “lost, destroyed, or
failed to preserve evidence whose contents or quality are important to the
issues in th[e] case.” Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 42 (4th ed.
2016); see also State v. Glissendorf, 235 Ariz. 147, 149, ¶ 1 (2014); Willits, 96
Ariz. at 191.
¶11 When law enforcement officers examined D.V.’s house after
the shooting, they found six possible bullet strikes. Two of the strikes
appeared to show penetration by bullets that did not pass through the
structures they hit. Neither the State nor Lopez sought to recover those two
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Decision of the Court
bullets, which apparently remained embedded in an exterior wall in one
case and an arch on the front porch in the other.
¶12 Lopez asked the superior court for a Willits instruction
premised on the State’s failure to extract the two bullets embedded in D.V.’s
house. He reasoned that if those bullets had been recovered, they might
have been linked to the same firearm associated with the recovered shell
casings, which would corroborate his testimony that there was only one
shooter (who was using a different gun than the one Lopez claimed to
possess that night).
¶13 The superior court denied Lopez’s request for a Willits
instruction, concluding he did not “show the State failed to preserve
material and reasonably accessible evidence having a tendency to exonerate
the defendant and that this failure resulted in prejudice.” In support of its
ruling, the court pointed to expert testimony “regarding the likelihood of
the recovery of the bullet[s], when bullets are actually recovered projectiles,
and their testimony about what could be determined based on whatever
projectile could have been recovered.” Lopez’s expert had testified it would
take “certainly more than an hour” to recover each bullet and there was “at
least a 50 percent likelihood” the recovered bullets would be sufficiently
“identifiable” to establish a link to a particular firearm.
¶14 We review the superior court’s refusal to give a Willits
instruction for an abuse of discretion. See Glissendorf, 235 Ariz. at 150, ¶ 7.
The court did not abuse its discretion in this case.
¶15 To merit a Willits instruction, a defendant must establish:
(1) the State “failed to preserve material and reasonably accessible
evidence”; (2) such evidence “could have had a tendency to exonerate the
accused”; and (3) “resulting prejudice.” Id. at ¶ 8 (internal quotation marks
and citations omitted). The superior court’s ruling was correct in this case
because Lopez did not show the State “failed to preserve” the evidence at
issue. See RAJI Stand. Crim. 42 (referring to evidence the State “lost,
destroyed, or failed to preserve”); State v. Perez, 141 Ariz. 459, 464 (1984)
(stating the appellate court is “obliged to affirm the trial court’s ruling if the
result was legally correct for any reason”). The two bullets apparently
remained embedded in D.V.’s house and were therefore not lost, destroyed,
or otherwise made unavailable by the State. See State v. Geotis, 187 Ariz.
521, 525 (App. 1996) (no abuse of discretion in denying Willits instruction
where “there was no showing that [the evidentiary items at issue] were
rendered inaccessible to defendant for his later use”). The bullets remained
available to be collected and examined at the time of trial, and the State had
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STATE v. LOPEZ
Decision of the Court
no “affirmative duty” to recover the bullets “for the defense to use in
corroborating the defense’s own evidence.” State v. Rivera, 152 Ariz. 507,
512 (1987). Additionally, because the prosecution alternatively argued
accomplice liability, any evidence that the embedded bullets belonged to a
second weapon would not have exonerated Lopez, but instead would have
presumably made clear that both Lopez and the other man fired shots. See
Glissendorf, 235 Ariz. at 150, 152, ¶¶ 9, 19. Lopez’s appeal is without merit.
CONCLUSION
¶16 Lopez’s convictions and sentences are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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