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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   ROBERT LEON JONES, JR., Appellant.

                             No. 1 CA-CR 20-0081
                                FILED 11-10-2020


           Appeal from the Superior Court in Maricopa County
                        No. CR2018-000243-001
                   The Honorable Jay Adleman, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
                            STATE v. JONES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.


M c M U R D I E, Judge:

¶1             Robert Leon Jones, Jr., appeals his conviction and sentence for
trafficking in stolen property (computer tablet) in the second degree, a Class
3 felony. Jones’ counsel filed a brief per Anders v. California, 

386 U.S. 738

(1967), and State v. Leon, 

104 Ariz. 297

(1969), certifying that he found no
arguable question of law that was not frivolous after a diligent search of the
record. Jones was allowed to file a supplemental brief. He raised the
following issues: (1) whether the superior court erred by allowing into
evidence photographs of the victim’s (Y.F.) computer tablet; and
(2) whether the superior court erred by not issuing a Willits instruction sua
sponte because the police returned the computer tablet to Y.F. before the
defense could examine it for DNA or fingerprints. Counsel asks this court
to search the record for arguable issues. See Penson v. Ohio, 

488 U.S. 75

(1988); State v. Clark, 

196 Ariz. 530

, 537, ¶ 30 (App. 1999). After reviewing
the record, we affirm Jones’ conviction and sentence.

             FACTS1 AND PROCEDURAL BACKGROUND

¶2             In December 2016, someone broke into Y.F.’s home and stole
her son’s computer tablet. The device contained specialized software
designed to assist autistic children with communication. It was worth
$4680. Shortly after it was stolen, an individual approached Jones outside
his apartment and sold Jones the tablet for 10-12 Oxycodone pills. At the
time, Jones lived with Gloria Maria Taberez Villafana, whom he was dating
and had a child. Jones looked up the tablet’s value and decided to pawn it
because they needed money for bills.

¶3           Villafana pawned the tablet at a pawnshop in Phoenix.
Detective Michael Ross, with the Phoenix Police Department, identified the


1     We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State
v. Mendoza, 

248 Ariz. 6

, 11, ¶ 1, n.1 (App. 2019).



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                            STATE v. JONES
                           Decision of the Court

tablet by matching its serial number to the serial number provided by Y.F.
Approximately one week later, Detective Ross took the tablet from the
pawnshop and returned it to Y.F. In an interview with Detective Ross, Jones
admitted he bought the tablet with Oxycodone. In August 2017, Villafana
pled guilty to facilitation to commit trafficking in stolen property stemming
from her crime involvement.

¶4            A grand jury indicted Jones on one count of trafficking in
stolen property in the second degree, a Class 3 felony. As sentencing
allegations, the State alleged: (1) historical, non-dangerous prior felony
convictions under Arizona Revised Statutes (“A.R.S.”) section 13-703, and
(2) non-historical prior felony convictions not committed on the same
occasion.

¶5            The superior court conducted a three-day jury trial. The court
admitted several photographs of the computer tablet into evidence without
objection. Y.F. identified the pictures as those she gave to Detective Ross.
She recognized the tablet in the photographs as her son’s using the serial
number and specialized speaker attachment. Detective Ross testified,
without an objection, that Jones admitted to buying the tablet.

¶6            Villafana testified that she alone was responsible for buying
and selling the tablet because she needed money. She further testified that
she and Jones shared bills, and they drove to the pawnshop together. Jones
declined to testify. The jury found Jones guilty.

¶7            At the sentencing hearing, Jones admitted to his prior
convictions. The court determined Jones was a category three repetitive
offender under A.R.S. § 13-703(J) and sentenced him to nine years’
imprisonment, with 286 days of presentence incarceration credit. Jones
appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).

                              DISCUSSION

A.    The Superior Court Did Not Err Regarding the Issues Raised in
      Jones’ Supplemental Brief.

¶8             In his supplemental brief, Jones makes two arguments. First,
he claims the superior court erred by allowing into evidence photographs
of Y.F.’s tablet. He argues there was an inadequate foundation to introduce
the photographs and related testimony because they were not properly
authenticated. Second, Jones argues he was entitled to a Willits instruction
because the police returned the tablet to Y.F. before he could examine it for


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                              STATE v. JONES
                             Decision of the Court

forensic evidence. See State v. Willits, 

96 Ariz. 184

, 191 (1964). Because Jones
failed to raise these claims at trial, we only review for fundamental error.
State v. Escalante, 

245 Ariz. 135

, 138, ¶ 1 (2018).

       1.     The Court Did Not Err by Admitting Photographs of the
              Stolen Computer Tablet.

¶9            We review the superior court’s rulings on the admission of
evidence for an abuse of discretion. State v. Leteve, 

237 Ariz. 516

, 523, ¶ 18
(2015). Under Arizona Rule of Evidence 901(b)(1), a proponent can establish
a foundation for evidence through a witness’s identification testimony.
State v. Emery, 

141 Ariz. 549

, 551 (1984). Y.F.’s identification of the tablet
photographs—which she gave to police—was sufficient foundation.
Moreover, Jones’ argument that a chain of custody must be shown to admit
photographs is incorrect because the exhibits were personally identified
according to Rule 901(b)(1). Id.; State v. Steinle, 

239 Ariz. 415

, 420–21, ¶ 25
(2016). Furthermore, despite Jones’ claim that he did not have an
opportunity to examine the photographs for authenticity,2 Rule 901(b)(1)
allows for authentication through witness identification. State v.
Haight-Gyuru, 

218 Ariz. 356

, 358–59, ¶¶ 9–10 (App. 2008); see also Lohmeier
v. Hammer, 

214 Ariz. 57

, 61, ¶ 8 (App. 2006). The photos were identified
correctly, authenticated, and admitted.

¶10             Jones further argues that the photographs should not have
been admitted in place of the tablet itself. In support, he cites A.R.S.
§ 13-3941(A) and (C). Such arguments have been repeatedly rejected. See
State v. Bouillon, 

112 Ariz. 238

, 240–42 (1975); State v. Rose, 

121 Ariz. 131

, 141
(1978). “To require the victim to endure the deprivation of his property
from the date of the burglary to the completion of appellant’s trial and
appeal is adding insult to injury and when not necessary to the
[prosecution] of the defendant should be avoided.” 

Bouillon, 112 Ariz. at 241

. Accordingly, we find no error, let alone fundamental error, in the
court’s decision to admit the photographs.




2      Jones alleges the State did not disclose the photographs given to
police by Y.F. However, the State’s Notice of Disclosure gave him the
opportunity to inspect the photographs held by police.



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                              STATE v. JONES
                             Decision of the Court

       2.     The Superior Court Did Not Err by Failing to Issue a Willits
              Instruction Sua Sponte.

¶11            When the police negligently fail to preserve potentially
exculpatory evidence, a Willits instruction permits the jury to infer that the
evidence would have been exculpatory. State v. Fulminante, 

193 Ariz. 485

,
503, ¶ 62 (1999). “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.”

Id. A court’s decision

regarding a Willits instruction is reviewed for an abuse
of discretion. Id.; State v. Glissendorf, 

235 Ariz. 147

, 150, ¶ 7 (2014); State v.
Leslie, 

147 Ariz. 38

, 47 (1985).

¶12            Jones does not argue that forensic evidence on the tablet was
itself potentially exculpatory. Instead, he argues that this evidence could
have been used to challenge the tablet photographs’ authenticity. Jones
argues that DNA or fingerprints could have been used to confirm that the
tablet listed in the complaint did not match Y.F.’s stolen computer tablet.
Therefore, it could have been used to challenge the admissibility of the
photographs.

¶13            It is unlikely that forensic evidence would have affected the
admission of the photographs. Not only was the identification testimony of
Y.F. sufficient for admission under Arizona Rule of Evidence 901(b)(1), Rule
901(b)(4) allows for authentication by looking at the “distinctive
characteristics of the item.” The photographs contained the tablet’s
distinctive serial number and unique speaker attachment, confirming it was
Y.F.’s stolen tablet. Jones does not state how DNA or fingerprints would be
used to challenge the photograph’s authenticity considering the matching
serial number and witness identification. Thus, the decision to admit the
photographs under Rule 901 was in the superior court’s discretion. See State
v. Thompson, 

166 Ariz. 526

, 527 (App. 1990). Because the photographs would
nevertheless have been admitted, Jones has not shown that forensic
evidence affecting admissibility would have tended to exonerate him, nor
that its absence prejudiced him. Moreover, our supreme court recently
rejected a similar Willits argument. See State v. Hernandez, CR-19-0193-PR,

2020 WL 6278193

, at *2, ¶ 11 (Oct. 27, 2020).

B.     We Find No Additional Arguable Issues.

¶14           We have read and considered counsel’s brief and have
reviewed the record for any additional arguable issues. See 

Leon, 104 Ariz. at 300

. We find none.



                                        5
                            STATE v. JONES
                           Decision of the Court

¶15           Jones was present and represented by counsel at all stages of
the proceedings against him. The record reflects the superior court afforded
Jones all of his constitutional and statutory rights and conducted the
proceedings following the Arizona Rules of Criminal Procedure. The court
held appropriate pretrial hearings, and the evidence presented at trial and
summarized above was sufficient to support the jury’s verdict. Jones’
sentence falls within the range prescribed by law, with proper credit given
for presentence incarceration.

                             CONCLUSION

¶16           We affirm Jones’ conviction and sentence. After the filing of
this decision, defense counsel’s obligations pertaining to Jones’
representation in this appeal will end after informing Jones of the outcome
of this appeal and his future options, unless counsel’s review reveals an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 

140 Ariz. 582

, 584–85 (1984).




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




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