State v. Dillon, 1 CA-CR 16-0697

Appellant Douglas Dillon was convicted by a jury of three counts of second-degree burglary (class 3 felonies), one count of theft ≥ $3,000 (class 4 felony), and two counts of criminal damage (one misdemeanor, one felony) arising from 2014 residential burglaries in Coconino County.
The trial court sentenced Dillon to concurrent and consecutive minimum prison terms totaling 12 years; the minute entry erroneously stated he was sentenced as a non-repetitive offender.
The prosecution did not obtain an exterior surveillance video from victim William S.; deputies viewed the exterior footage at William’s home on the day of the burglary but William later said he could not download or did not provide the exterior clip to law enforcement.
Dillon requested a Willits jury instruction (adverse inference for lost/exculpatory evidence), arguing the missing exterior video was material and reasonably accessible and would have tended to exonerate him.
The trial court denied the Willits instruction; on appeal, Dillon argued the denial was an abuse of discretion. The Court of Appeals affirmed but corrected the sentencing minute entry to reflect Dillon was sentenced as a repetitive offender.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Willits instruction was required for the unpreserved exterior surveillance video	State: no duty to preserve evidence it never possessed and the video was not reasonably accessible	Dillon: sheriff’s office knew of the video and should have secured it; video might have exculpated him	Denied — no abuse of discretion: video was not reasonably accessible and Dillon failed to show prejudice
Whether speculation about the video’s value suffices to obtain Willits relief	State: speculative claims are insufficient	Dillon: argued the video could have supported mistaken-identity defense	Held: speculation inadequate; must show real likelihood of evidentiary value
Whether unobjected prosecutorial testimony about the suspect vehicle requires reversal	State: waived for lack of trial objection; no fundamental error shown	Dillon: claims prosecutor elicited impermissible testimony	Held: issue waived; no fundamental, prejudicial error shown
Whether sentencing minute entry must be corrected to indicate repetitive offender status	N/A	N/A	Corrected — trial court had found a prior conviction and sentenced as repetitive; minute entry amended accordingly

State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964) (lost or destroyed material evidence may warrant jury instruction when it would have tended to exonerate defendant)
State v. Perez, 141 Ariz. 459, 687 P.2d 1214 (1984) (police must act timely to secure obviously material evidence within their grasp)
State v. Glissendorf, 235 Ariz. 147, 329 P.3d 1049 (2014) (defendant must show more than speculation; evidence must have a real likelihood of exculpatory evidentiary value)